Going Nowhere Fast – Affirmative Action Opponents Stymied in the States

By Amy Wood

Vol. 20, No. 1, 1998 pp. 3-11

Across the country, conservatives are realizing that affirmative action will not easily be eliminated through state legislative action. Despite sharp attacks in the courts and reports that state legislators from coast to coast are preparing to eliminate state affirmative action programs, during 1996 and 1997 only thirteen states actually introduced such legislation, and none of these bills was successful. And only one state, Washington, expects to have an initiative similar to California’s Proposition 209 on the ballot in 1998. Events in 1998 show that affirmative action is still very much a viable force in America. In fact, those working to repeal affirmative action on the state level see themselves engaged in a difficult and potentially unsuccessful struggle.

Hopefully, this news will end the widespread perception that the foes of affirmative action constitute, as The New York Times put it in November 1997: “The national movement that has often seemed to have the momentum of an unstoppable freight train.” It was a prominent report in the Times a year earlier, along with stories in The Atlanta Constitution, The Dallas Morning News, and other papers, that left the false impression that almost half the states were on the verge of eliminating their affirmative action programs.

In November of 1996, Sam Howe Verhovek of The New York Times, wrote that twenty-six states had introduced anti-affirmative action legislation that year. According to his assistant, Verhovek got the figures from the National Conference of State Legislatures (NCSL), a non-partisan organization that tracks state legislation. Yet, a closer look at the NCSL 1996 affirmative action report reveals that while twenty-six states introduced some form of legislation concerning discrimination and affirmative action, fewer than half that number of bills in 1996 actually sought comprehensive repeal. Indeed, some of the legislation was offered to support anti-discrimination laws. Though Verhovek correctly noted that “not a single bill passed,” his numbers took on a life of their own.

Similar figures were cited in an October 6, 1997 story by Scott Shepard of The Constitution’s Washington Bureau and one by David Jackson in the Dallas Morning News. Jackson reported that “Up to 30 states are preparing referendums similar to Proposition 209,” while Shepard stated that nineteen states had anti-affirmative initiatives or legislation in the works. Jackson’s figures came from the American Civil Liberties Union, and he admitted that he may have exaggerated a lithe. The ACLU’s publicity office in New York claimed their number of twenty-five to thirty states came from, again, The New York Times.

These inflated estimates have had the effect of making the opponents of affirmative action appear stronger and more successful than they actually are. Here are the facts: in the 1997 state legislative sessions, bills amending state constitutions or statutes to repeal affirmative action were introduced in: Arizona, Colorado, Georgia, Michigan, Missouri, New Jersey, New York, North Carolina, Oklahoma, Ohio, and South Carolina. The intent and wording of all of these are similar to Proposition 209, as they seek to “prohibit discrimination and preferential treatment based on race, sex, color, ethnicity or national origin in public employment, public education or public contracting.”

In every case in 1997, the bill or referendum was either “postponed indefinitely,” or held in committee, the “graveyard” of legislation, as one bill sponsor commented. While the situation is more precarious in Washington State and Ohio, the sponsors in the remaining states lack confidence that their legislation will succeed any time soon.

Affirmative action opponents find themselves in the curious position of claiming that public opinion is on their side, and that the majority of Americans no longer want affirmative action, while their legislative and initiative efforts are thwarted due to lack of support or concern from voters, business and community leaders, and even fellow conservatives. Efforts in Houston, Colorado, Florida, and Georgia demonstrate that defenders of affirmative

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action can be successful. “Not only public opinion, but momentum, is on our side” concludes Brian Komar of the Leadership Conference of Civil Rights.

In at least three states, Oklahoma, Missouri, and Michigan, the battle to eliminate affirmative action has been laid to rest for now. The sponsors of anti-affirmative action bills in these states are not planning to re-introduce the legislation that they pushed weakly last year. Missouri state Senator Peter Kinder (R-Cape Giradeau) says that he did not even press for a hearing of his bill (SJR 3) because he “knew it wasn’t going to go anywhere.” He does not see similar legislation being enacted in the “foreseeable future.”

Likewise, Oklahoma state Representative Bill Graves (R-Oklahoma City) and sponsor of FUR 1010, asserted that affirmative action is “probably pretty safe in Oklahoma.” In Michigan, Representatives Michelle McManus (R-Lake Leelanau) and David Jaye (R-Washington Town ship) collectively introduced three pieces of legislation in 1997, all of which were held in committee. An aide to Representative McManus explained that they were encouraged to move last year because the Republicans controlled the House, but this year, with Democrats in control, they feel it “would be fruitless” to press further. Affirmative action is probably secure in the northeast.

While representatives in New York and New Jersey are planning to re-introduce legislation in the next session, they are not expecting the bills to go forward. When controversy heated up in New Jersey in 1997, sponsors of Assembly Bill 2533 lost some support when fellow Republican Kevin O’Toole of Cedar Grove, backed into a “mend it, don’t end it” position. O’Toole then pro posed his own compromise bill Assembly Bill 2748, which would give preference to the “economically disadvantaged.” Even this more liberal bill was held in committee.

Battleground States

More difficult battles await affirmative action proponents in Ohio, Washington State, and the Carolinas, but recent events in Arizona and Georgia indicate defeat is by no means inevitable. In North Carolina, representative Edwin Hardy (R-Beaufort) is ready to re-introduce his anti-affirmative action referendum, HE 981, in 1999, if he gets re-elected in 1998. As a referendum, Hardy hopes that the legislature will let it through so “the people can decide.” If the fate of affirmative action were left to public

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vote, Hardy feels certain that it would be repealed. Despite his optimism, representative Howard Hunter, a Democrat from Conway and former chair of the state Legislative Black Caucus, called Hardy’s bill “a dead deal,” adding that affirmative action is “a battle we are going to have to fight, but it won’t be that bill.”

In South Carolina, the situation is more complex but no more hopeful for opponents of affirmative action. Alter a racially divisive debate, the South Carolina House voted 74-37 on February 19, 1998 in favor of a bill that would force state government agencies to drop affirmative action programs, including admissions and scholar ship programs at public colleges.

The bill is currently in the Senate Judiciary Committee, but few believe it will ever pass the majority-Democratic Senate. Representative James McGee III (R-Florence), who replaced the bill author Representative Hunter Limbaugh last November, says, “I can tell you right now it’s going to be killed in the Senate.”

With this knowledge, House Republicans have continued to push the issue, attempting unsuccessfully to attach an anti-affirmative action measure to the state budget on March 4, 1998. “This time was different because the Black Caucus had an opportunity to tie the bill up,” says Representative Joe E. Brown (D-Richland County). “We [the Black Caucus] don’t have enough power to pass something, but we do have enough to stop some things.”

After the March 4 defeat, the chances look slim for opponents of affirmative action this year. “The only chance that this measure would pass the Senate would be if it had been tacked onto the budget bill,” says Micheal Sponhour, who has been covering the issue for The State newspaper in Columbia.

In Arizona, three anti-affirmative action bills were introduced in the 1997 session, two conventional bills and one referendum, like his North Carolina counterpart, the sponsor of the referendum, Tom Home (R-Phoenix) is certain that had his bill passed the legislature, the people of Arizona would have voted to repeal affirmative action. In 1997 as a freshman representative, he backed off from the bill because he did not have support from either Republican Governor Fife Symington, or other Republicans in the legislature. With Republican Governor Jane Hull now in office following the indictment and mid-term resignation of Governor Symington, Home reintroduced his bill in 1998. Home’s measure was defeated 11 to l9in the Arizona Senate on February25, 1998 with seven Republicans joining all twelve Democrats.

Anti-affirmative action bills were more successful in Colorado, with one passing the House before being postponed indefinitely. The first, HB 1299, sponsored by

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representative Vicki Agler (R-Littleton), was held by the Senate Judiciary Committee. Representative Mark Paschall (R-Jefferson County) subsequently withdrew his bill, HB 1336, from Senate consideration because he knew he could not battle it through, and if he did, Governor Romer would veto it. In the 1999 session, however, Paschall plans to introduce a referendum, which would both bypass a Governor’s veto and not require a two-thirds majority. Agler, however, believes this statute will fail as well be cause of the lack of support in the senate.

Most recently in Ohio, Representative Mike Wise (R-Broadview Heights) and state Senator Gene Wafts (R Galloway) introduced two resolutions modeled after Proposition 209 which would place a Constitutional amendment repealing affirmative action on the November1998 ballot. These resolutions are unlikely to pass. Mark Potts, a legislative aide in Watt’s office, is “not overly optimistic.” Wafts’ bill would need a two-thirds majority, and while there are sixty-six Republicans in a House of ninety-nine representatives, at least two or three Republicans have already come out against the bill. House Speaker, Jo Ann Davidson (R-Reynoldsberg), is quoted as saying, “I would be very surprised to see that resolution come out of committee.”

Republicans Lack Consensus

The situation in Ohio and Arizona is representative: bills are stalling because there is not a Republican consensus. In every instance in 1997, anti-affirmative action legislation never made it out of committees, not only because Democratic members voted these bills down, but certain Republicans have as well. In North Carolina, for instance, Hardy’s bill was held up in the Judiciary Committee by a tie vote cast by a Republican. Even if brought to a floor vote, these bills would need unanimous Republican sup port to pass, which they do not have, as evidenced by 1998 votes in the Arizona and Georgia legislatures. Eleven Republicans voted for a Democratic-sponsored substitute to defeat a Republican-led repeal of affirmative action programs in Georgia (See Georgia article, page 20).

Those working to eradicate affirmative action in the states explain Republican legislators reluctance to come out strongly behind such legislation as a matter of political expediency rather than a disavowal in principle. According to Ann Kramer of the American CMI Rights Institute (ACRI), a curiously-named national anti-affirmative action organization based in Sacramento, California, “legislators do not have the courage to stand up for this issue.”

Indeed, on the federal level, several bills have effectively been killed by leading Republicans, including Newt Gingrich (see “Legislation Blocked,” page 5). Affirmative action is not an issue that congressional Republicans want to take head-on in an election year. As stated by John Miller, vice-president of the Center for Equal Opportunity, a conservative Washington, D.C., think-tank, “the anti-preference movement is at a standstill.”

When not ignoring or avoiding the issue, Republican responses to these federal and state roadblocks have been twofold. In some cases, Republicans have proposed bills that would force revision of affirmative action programs without ending them all together-the “mend it, don’t end it” approach. One example is Kevin O’Toole class- based, affirmative action bill in New Jersey. In Michigan, representative Michelle McManus’s two bills (RB 4457 and HB 4459) would only require that public affirmative action policies be reviewed by the state Civil Rights Com mission in order to ensure that they conform to recent Supreme Court decisions, as opposed to the Joint Resolution put forward by her more conservative colleague, David Jaye, which would eliminate affirmative action all together. Although a spokesperson for McManus stated that McManus and Jaye worked together to push these bills, he added that “we are not really confident that we need to eliminate affirmative action everywhere.”

Legislators have proposed these “compromise bills” in order to stimulate anti-affirmative action activity, but they have had the unintended effect of stalling action by dividing Republican support As Vicki Agler said of affirmative action in Colorado, “It’s not a winnable battle in the legislature it’s just not.” One alternative is to appeal directly to the public through grassroots initiative drives. Indeed, California ended affirmative action not through its state government, but through such an initiative campaign. The American Civil Rights Institute and its grass roots network the American Civil Rights Coalition were founded by Ward Connerly, the businessman who spear headed California’s Proposition 209 campaign, in order to provide support and guidance to groups seeking to organize such efforts. Other states have been slow to go along.

Focus on Washington State

As it stands, only Washington State appears to be poised to overturn affirmative action through the ballot in 1998. Initiative 200 received 280,000 signatures, over 100,000 more than are required for it to appear on the ballot. In the past two years, initiative drives begun in Colorado, Illinois, and Florida have failed due to lack of support-they simply could not obtain enough signatures to make it onto the ballot. An initiative drive in Ohio is still in its earliest stages — but organizers in that state need 335,000 signatures to qualify for the November ballot. Only twenty-four states even allow initiatives, and the ACRI admits that in many of these affirmative action is not a burning topic. “We can’t take this issue to Wyoming,”

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says the ACRI’s Ann Kramer, “It’s not going to be sold nationwide.”

Much can be learned from states that have fried initiative campaigns. Anti-affirmative action campaigners in Washington for Initiative 200 have been successful (indeed, they obtained more signatures than any other initiative in the state’s history) due to a shrewdly devised campaign, a supportive Republican-controlled legislature, and the lack of a strong opposition. National figures like Steve Forbes and Bill Bennett offered free publicity in the form of speeches and commercials. (John Carlson, a Tacoma talk-radio host and newspaper columnist, used his show and columns to advertise for the initiative. He has since been fired.) And while Washington’s Democratic governor, Gary Locke, has come out against the initiative, Republicans control both the state house and senate. The initiative will first be put before the legislature, which may vote whether or not to enact it immediately into law. Because the legislation is an initiative, it would have no veto power. And even if the legislature votes it down or takes no action, the initiative will go directly onto the November1998 ballot. Activists on both sides of the issue are currently lobbying legislators for their vote. Washington State affirmative action proponents know they have a big battle ahead. The NAACP has formed a coalition with a cross-section of minority and women’s groups across the state, which is trying to educate the voters in Washington about the intent of the so-called “Civil Rights Initiative.” They had a small victory when they were able to expose that the initiative campaign had duped some African American volunteers into thinking they were working for a civil rights cause.

Language Is Key

Carlson and his compatriots have been very calculating with their use of language, focusing the issue on “preferences,” “quotas,” and “discrimination” rather than “affirmative action.” “I don’t mind affirmative action at all,” says Carlson, “as long as it is done through expansion and outreach programs.” In this way, the initiative campaign appears much more liberal than it actually is. But, the Washington initiative uses the same misleading language that is credited with Proposition 209’s success in California.

Experiences in Colorado and Florida, however, demonstrate that initiatives can be defeated. Affirmative action there is, for now, relatively secure, largely due to coalition efforts to sway public opinion against anti-affirmative action campaigns. An initiative drive stalled in the planning stages when it became clear there would not be enough signatures to make it on the November 1998 ballot According to Kramer, the anti-affirmative action forces will re-group next year, and try for the year 2000.

Supporters of affirmative action in Colorado continue to prepare for battle to ensure that Representative Paschail’s upcoming statute in l999will be defeated and to lay the groundwork to counter any future initiative action. Members of the Colorado Progressive Coalition, based in Denver, credit the defeat of last year’s bills to their efforts.

According to activist Soyun Park, “We were able to kill those bills because we didn’t just hold a press conference, but we held press conferences thong with rallies, and other grassroots efforts — phone calls and letters.”

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Bill Vandenberg of the Colorado Coalition adds that members deferred legislative action by rallying outside the capitol and filling committee rooms; with these rooms filled, legislators were forced to find other times and places to convene. The Coalition also gathered support from local businesses, labor organizers, community organizations, and students.

For 1998, the Colorado Progressive Coalition has already mobilized a larger network, called Colorado Unity, made up of minority, women’s, and other progressive organizations across the state. They will continue the tactics they used last year, but, in order to be more proactive, they are seeking to broaden their base with a statewide education effort. On Martin Luther King Day, they launched a series of teach-ins and community forums on college campuses and within local communities.

Colorado Unity has modeled its efforts on the successful recent campaign organized in Houston to over come an anti-affirmative action initiative. The Houston initiative, which sought to eliminate affirmative action in public hiring and contracting, and which won enough signatures to be on the November 5 ballot, was defeated by a 54 percent to 44 percent margin. Pro-action coalition efforts rallied businesses, labor groups, women’s groups, students, and individuals. The Houston coalition also had the public support of Mayor Bob Lanier, and the financial support of local and national businesses.

Corporate Role Critical

As things stand right now, affirmative action’s immediate salvation might just come from corporate support. Initiatives cost as much money as any other kind of political campaign. Initiative planners must raise at least one dollar for every signature they need. According to organizers of Florida’s “Civil Rights Initiative” anti-affirmative action drive, their campaign is failing precisely because they have not been able to find adequate financial support. To qualify for the November 1998 ballot, the initiative needed 435,000 signatures by January 1, a goal they did not reach. The problem according to Initiative chairman Pat Bainter, was money. They needed five-hundred thousand dollars, an amount they did not come close to raising through individual donations. Former chairman of the Initiative, Orlando businessman John

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Barry explained that although he received some donations from wealthy individuals, he needed financial support from either the Republican Party or big businesses. California’s Proposition 209, for instance, really took off when the GOP came on board, providing one-quarter of the campaign’s total finds. Free advertising and publicity has complemented the individual donations that have fueled Washington State’s initiative.

According to Florida and Washington organizers, businesses have not backed their campaigns because they fear losing customers. “They don’t want people picketing them,” says Bainter. Likewise, Carlson explained that Washington businesses have not gotten involved with his initiative because “big business is reluctant to take risks, to get into the fray.” But, as experience in Houston shows, businesses are not necessarily neutral on the issue. They are not only reluctant to back anti-affirmative action campaigns for fear of customer boycotting, but they also realize that affirmative action, or at least its primary effect — diversity — is good for business. The 1995 Federal Glass Ceiling Report found that affirmative action not only widens the “pool of talent” businesses can draw from in hiring, but also that businesses recognize that they need to reflect the diversity of the marketplace and its customers. Affirmative action defenders can enhance their power to defeat these initiatives by gaining corporate support and dollars.

In Ohio, anti-affirmative action organizer B.J. Kresnye is hoping to circumvent the money problem by seeking support from state Republicans. Indeed, Ohio is the only state with both an initiative in the works and pending legislation in the state legislature. Kresnye says that he does not have the time, energy, or money to see this initiative all the way through to the ballot, adding that “no one has the ability to do what Ward Connerly did, devote heart and soul to the initiative.” Kresnye’s goal is to goad Ohio legislators into passing the bills put forward by Representative Wise and senator Watts. But, according to Wise’s aide, Mark Potts, state Republicans have not paid much attention to Kresnye’s actions: “the Republican Party is interested in supporting Republicans, not specific issues.”

Honda’s FREE Coalition Seizing Initiative

Anti-affirmative action organizers in Florida face the same problem, receiving only lukewarm support from Florida Republican party. Although some Republican legislators and candidates, including Jeb Bush who is running for governor this year, are sympathetic to the goals of the initiative, they are reluctant to take a public stand. A spokesperson from the Senate majority leader’s office stated outright that “affirmative action is just not an issue for Senate Republicans,” adding that an anti-affirmative action initiative would not be as successful in Florida as in California because “Floridians just don’t have the animosity they have in California.” Florida anti-affirmative action organizers are planning to regroup and try again in the year 2000. The NAACP in Florida has already begun proactive efforts to ensure affirmative action survival in the state. In order to galvanize public support, the NAACP has formed a coalition with other minority groups and business leaders entitled FREE, or Floridians Representing Equity and Equality.

The purpose of the FREE coalition is not to defeat the initiative, which they do not see as a looming threat. As Larry Colleton, legal redress for the Florida NAACP says, “deep down we don’t think this initiative is going anywhere . . . but we are not going to throw caution to the wind either.” Director of the Florida NAACP, Leon Russell agrees: “We are not going to attack John Barry [original initiative organizer]….We’re not going to give that initiative any publicity; instead we are going to present positive action.”

The goal of FREE is to implement a pro-active, pro-affirmative action campaign-to beat affirmative action foes at their own game. Their strategy is two-pronged. First, they have presented a proposal to the commission appointed to review the Florida Constitution (a revision that occurs every twenty years and is underway this year) which asks for an amendment allowing state agencies and Florida’s political subdivisions to undertake affirmative action where there is evidence of the current effects of past discrimination. Secondly, FREE is organizing a signature campaign to get this Constitutional amendment on the November 1998 ballot Russell estimates that such a campaign will cost one-and-a-half million dollars, an amount he says can be raised with corporate backing. FREE is proposing a pro-affirmative action initiative. As affirmative action is already in place in Florida “state agencies and its political subdivisions,” such an amendment would only bolster its position, and demonstrate the state’s commitment.

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California Not the Norm

Ultimately, California may turn out not to have been the norm, nor the standard-bearer, but rather an anomaly. Vicki Agler of Colorado believes that state groups that would otherwise support anti-affirmative action initiatives are laying low because only a few states have similar plans. “The reason [Colorado initiative planners] are backing off,” says Agler, “is because they don’t want to be the only state.” If only one state works toward an initiative, they fear pro-affirmative action groups like the NAACP or the ACLU will pour all their resources into defeating that initiative. By waiting until several states can pool together and put forward initiatives, anti-affirmative action groups can “diversify the resources” of affirmative action supporters.

Whatever state-based movements may attempt, the baffle over affirmative action also will continue to be fought in the courts. Most recently, the Center for Individual Rights, which fought and won the Hopwood case in Texas in 1995 (which banned affirmative action in University of Texas admissions), has brought suit on behalf of two white students against the University of Michigan’s affirmative action admissions policies. And in 1997, the U.S. Supreme Court upheld California’s Proposition 209 and earlier refused to hear the Hopwood appeal. The justices had decided to hear Piscataway vs. Thiman, which involved the decision to fire a white teacher over a black teacher in the Piseataway, New Jersey, school system, but a settlement by the parties and major civil rights organizations removed the case from theft docket.

The current state-by-state situation demonstrates that affirmative action opponents do not constitute a great tide sweeping the nation, precisely because they are not reflecting public opinion. (See survey article, page 22.) Law makers and pressure groups who are pushing to end affirmative action are facing stumbling blocks, not only from Democrats but from many Republicans as well as from businesses who do not want to alienate their public, and from voters who want to retain affirmative action or at least its effects of diversity and equity. As Brian Komar of the Leadership Conference on Civil Rights explains, “It is clear there is broad enough support among the American public to block or defeat extreme efforts seeking to eliminate affirmative action programs for women and people of color. It is unfair that current coverage does not reflect this reality.”

Amy Wood is a graduate student in the institute of Liberal Arts at Emory University.

Sidebar: Compelling Words from Dr. King

Staff

Vol. 20, No. 1, 1998 p. 8

California opponents of affirmative action appropriated the concepts of the civil rights movement, even distorting the words of Rev. Martin Luther King, Jr., to undermine the movement’s achievements. King’s support for “compensatory” programs is evident in this passage from Why We Can’t Wait (New York: Penguin Books, 1964, p. 134).

“Among the many vital jobs to be done, the nation must not only radically readjust its attitude toward the Negro in the compelling present, but must incorporate in its planning some compensatory consideration for the handicaps he has inherited from the past. It is impossible to create a formula for the future which does not take into account that our society has been doing something special against the Negro for hundreds of years. How then can he be absorbed into the mainstream of American life if we do not do something special for him now, in order to balance the equation and equip him to compete on a just and equal basis? Whenever this issue of compensatory or preferential treatment for the Negro is raised, some of our friends recoil in horror. The Negro should be granted equality, they agree; but he should ask nothing more. On the surface, this appears reasonable, but it is not realistic. For it is obvious that if a man is entered at the starting line in a race three hundred years after another man, the first would have to perform an impossible feat in order to catch up to his fellow runner.” -Rev. Martin Luther King, Jr.

Sidebar: National Anti-Affirmative Action Legislation Blocked

Staff

Vol. 20, No. 1, 1998 p. 5

U.S. Senate Defeats DBE Challenge

Supporters of fairness programs won another victory when an amendment to eliminate the Disadvantaged Business Enterprise (DBE) program for women and minority contractors in the federal highway transportation bill was defeated 58-37 in the U.S. Senate March 6. Every Democratic Senator but one and fifteen Republicans voted to table an amendment by Sen. Mitch McConnell (R-Kentucky) to the Intermodal Transportation Act. Senator Pete Domenici (R-New Mexico) spoke against the McConnell amendment, “The DBE program works to ensure a level playing field for qualified DBEs which have for years confronted discrimination and been blocked out of contracting opportunities.” “The DBE program is constitutional,” said Sen. Max Baucus (D-Montana) in floor debate on the bill. “It’s fair. It works. And it builds more inclusive communities and a stronger economy.”

Canady Bill Halted for Now

In a room packed with civil rights supporters, congressional action to end affirmative action was temporarily blocked November 6, 1997 when House Judiciary Committee members tabled HR 1909. But sponsor Rep. Charles Canady (R-Florida) is circulating a “compromise” incorporating very minor substantive changes in language that could be re-introduced.

The vote to kill HR 1909 came immediately after a surge in election turnout November 5 by minority voters in Houston, Texas, against a referendum ending affirmative action. Concerns about election year repercussions prompted four Republicans to help in tabling the measure. “Whether or not the GOP leadership will push the new language in an election year is unclear at this point,” says Brian Komar of the Leadership Conference on Civil Rights.

More Battles To Come

Other national legislative challenges are pending. A bill re-authorizing the 1965 higher education act could face limiting amendments. And, the confirmation fight for Bill Lann Lee, President Clinton’s appointment as assistant attorney general for civil rights, also hinges on the affirmative action debate. “Despite the victory in November, there will be many more battles to come,” says Komar, “so we are redoubling our efforts.”

Affirmative Action: Overcoming Disparities Yields Economic Benefits

By Amy Wood

Vol. 20, No. 1, 1998 pp. 12-15

Opponents like to argue that affirmative action divides; the reality is that the failure to overcome persistent inequality divides Americans. Affirmative action is necessary to ensure equal opportunity and racial, gender, and ethnic diversity in our country’s workplaces and schools, not only to compensate for past discrimination, but to remedy the economic inequalities that persist today, largely because of past injustices. Racial and gender disparities in income levels, material wealth, and professional and educational opportunities continue despite progress. Evidence shows that where affirmative action has been applied, it has been beneficial.

Before looking at the benefits of affirmative action, it is useful to see the income and educational disparities between white males and the groups targeted by affirmative action.

Income Levels

Recent figures on income levels illustrate persistent inequalities between employed white Americans and employed people of color.

1995 Per Capita Income Levels

White:	$18,304
Black:	$10,982	60%
Hispanic:	$9,300	50%

Source: U.S. Census Bureau, June, 1997

• College-educated black men make 73 percent of what college-educated white men make.
• College-educated black women make 98 percent of what college-educated white women make.
• The median year round income for full time male workers in 1995 was $31,496. Female workers average $22,497

1996 Household Income Levels

White Families:	$44,756
Black Families:	$26,522	59%
White families w/2 married wage-earners	$58,995
Balck families w/2 married wage-earners	$50,806	86%

Source: U.S. Census Bureau, June, 1997

In her 1997 book, In Defense of Affirmative Action, Barbara Bergmann has calculated the wage gaps between minorities and whites so as to take account of income disparities that may exist because of differences in education levels, experience, and geography. She uses figures from the U.S Census Bureau, as well as National Longitudinal Survey of Youth (for workers between 26-33; this survey also measures cognitive ability) to come up with a “residual gap” of the amount of wages lost due to discriminatory factors.

	Income Gap Based on Census Data (ages 18-65)	Income Gap Based on NLSY Data (ages 26-33)
Black Men	$4,145	$1,522
Black Women	$7,294	$3,393
White Women	$6,903	$3,539

Source: Bergmann, In Defense of Affirmative Action

Professional Disparities

Women and people of color comprise 57 percent of workers; this figure will rise to 62 percent by the year 2005. Yet, women and minorities are under-represented in managerial, professional, and administrative jobs. White

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men are over-represented in these higher-paying and higher-status jobs.

• 97 percent of senior managers of Fortune 1000 industrial and Fortune 500 companies are white; 95 percent to 97 percent are men.

The Department of Labor’s 1995 Glass Ceiling Report also found that “equal educational attainment does not level the playing field for Black men and women . . . . White men are over-represented in top positions regardless of educational level . . . . White men have 68 percent more of the executive, administrative, and managerial positions than should be expected at this educational level – all things being equal.”

Percentage of Women and Minorities in Professions

	Women	African American	Latino
Doctors	26.4%	4.5%	5.1%
Lawyers	29.5%	3.5%	2.8%
Professors	43.5%	6.5%	4.1%
Architects	16.7%	2.7%	4.3%
Scientists	29.3%	3.3%	1.9%
Engineers	8.5%	4.2%	3.8%
% of pop.	51.3%	12.1%	9.0%

Source: U.S. Department of Labor, 1996

Educational Disparities

In proportion to their representation in the population, people of color are underrepresented in higher education as well. As the decline in enrollment in Texas and University of California law schools post-Hopwood, and post-Proposition 209, respectively, demonstrate, affirmative action is responsible for the levels even being what they are.

Education attainment levels in U.S.

	4 years of high school or more	4 years of college or more
White	83%	24%
Black	73.8%	13.2%
Hispanic	53.4%	9.3%

Source: U.S. Census Bureau, June 1997

• African Americans make up 9.9% of enrollment in all two-year or four-year undergraduate institutions – out of a total of 12 million students.
• 39,754 Doctoral Degrees were awarded in 1993: African Americans received 1,106 (2.8%); Latinos received 834 (2.1%).
• 6,496 Doctoral Degrees in the physical sciences were awarded in 1993. Forty-one went to African Americans (0.6%) and 89 to Latinos (2.1%)

Persistent Racism

Because so much dialogue concerning affirmative action focuses on the need to rectify past discrimination, we often forget that discrimination is not entirely a thing of the past. Opponents of affirmative action argue that affirmative action has done its work, or that the present generation should not have to pay for the sins of the past. We need to remind folks that racism persists – and several academic studies exist that demonstrate the advantages white men still enjoy when applying for jobs or college admittance.

For example, a report entitled Affirmative Action Review: A Report to the President found that when pairs of equally qualified black and white testers applied for the same job, the white tester was either hired or advanced further in the hiring process while the black tester was turned away.

An audit by the General Accounting Office (GAO) found discrimination against Hispanic job seekers as well. Hispanic testers received 25 percent fewer job interviews and 34 percent fewer job offers than other testers.

Hiring Increases in Monitored Workplaces

It is clear from the anecdotal and empirical evidence that gross gender, racial, and ethnic inequities still persist. In order to more effectively argue for affirmative action, its proponents need to show that affirmative action has indeed worked to ameliorate these injustices.

In Not All Black and White, Christopher Edley notes that in compiling the Affirmative Action Report to the President, he and his colleagues were surprised to find that little work had been done to prove statistically the effectiveness of affirmative action. Most studies that exist compare private sector firms who are not obligated by federally-mandated affirmative action programs, and public-contracting firms that are under Executive Order 11246. These reports show that affirmative action has made a difference in minority employment levels.

Since affirmative action has been in place, federal contractors and agencies now hire many more minorities and women. Federal Contractors that underwent a Office of Federal Contract Compliance Program (OFCCP) review in the 1970’s subsequently hired more women and minorities at a quicker rate than contractors that did not undergo review, suggesting that government enforcement or checks on affirmative action does play a signi-

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ficant role in minority and female advancement . In other words, if the government did not intervene, we can assume that these minorities and women would not have been hired.

Opponents of affirmative action argue that contracting firms suffer lower productivity and efficiency due to OFCCP regulations. However, one study actually reveals that affirmative action has had no such effect on contracting firms.

Because OFCCP enforcement of affirmative action was significantly reduced in the 1980s, it is suggested that the OFCCP did not have as great an impact on minority-hiring in contracting firms.

The Los Angeles Times, reporting the results of their 1995 study of affirmative action, similarly asserted that “blacks . . . . have made disproportionate gains in public and private-sector jobs subject to affirmative action monitoring by the federal government.” Latino and Asian employment rates, on the other hand, are the same in both the overall work force and in government regulated jobs.

Detractors argue that the increases in minority and female employment are due to changes in social attitudes and conditions prompted by the Civil Rights Movement and the Women’s Movement rather than the “artificial” controls exerted by the government. They use this argument to claim that the anti-discrimination laws enacted in the wake of these movements makes affirmative action unnecessary.

Edley concedes that it is increasingly difficult to distinguish between progress due to anti-discrimination laws which apply to all employers and affirmative action programs that apply to federal contractors. The line between anti-discrimination policies and affirmative action policies, he recognizes, is slippery. But, he believes, as do most Civil Rights liberals, that the two policies are deeply wedded together. We can not truly enforce and achieve non-discrimination without some form of affirmative action.

Who Has Benefited?

Studies also show that since the implementation of affirmative action, the number of minorities and women represented in higher education and in skilled or administrative jobs has increased significantly. Subsequently, income gaps between minorities and whites, and between men and women have been reduced. These studies are used as verification that affirmative action has indeed worked.

These figures on income levels are provided by Bergmann:

• In 1967, black men’s wages were 69 percent of white men’s. In 1976, they had risen to 79 percent of white men. Since then they have fallen, due in part to economic recession.

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• Income levels for white women did not start to rise until the 1980s. In 1967, white women’s wages were 61 percent of white men’s. In 1995, they had reached 73 percent of white men’s.

According to the 1995 Los Angeles Times study, white women and black women have made the most gains. Affirmative action programs seemed to have the most impact on white women, whose representation in professional and administrative jobs nearly tripled between 1960 and 1990. Black women have also progressed at higher rates than black men.

The Glass Ceiling Report supports these findings, especially in the success rates of white women compared to minority men and women. White women made most of their gains in the 1980s.

Economic Costs and Benefits

Opponents of affirmative action, including John Barry of the Florida Civil Rights Initiative, have stressed the economic costs of affirmative action, since, they contend, instituting these programs costs millions of dollars.

But, according to the presidential Affirmative Action Review, “only 40 cents of every $1,000 in Federal educational assistance funding is devoted to” minority-targeted affirmative action programming. On the other side, proponents of affirmative action argue that affirmative action has economic benefits. It reduces poverty by eliminating racial discrimination in employment and education, thereby allowing African-American victims of poverty to advance. In other words, it contributes to the development of a black middle class. Minority set-asides in federal contracting, it is argued, promote minority entrepreneurship and contribute to the economic development of minority communities. Moreover, ensuring fair representation of minorities and women in the workplace will enhance business by widening the labor pool, and by making companies and firms more representative of their communities and, therefore, more effective.

The Glass Ceiling Report, although it looks mostly at private corporations and does not directly address affirmative action, does provide some harder evidence to substantiate these arguments. The Commission stressed that increasing diversity in the workplace was “good for business,” because it not only widens the “pool of talent” businesses could draw from, but also because businesses realize they need to reflect the diversity of the marketplace and their customers. It reports that “a 1993 study of Standard and Poor 500 companies shows that firms that succeed in shattering their own glass ceilings racked up stock market records that were nearly two-and- a-half times better than otherwise comparable companies.”

The Report also points out that minorities in the U.S., that is, Asians, Hispanics, and African Americans, represent more than $500 billion a year in consumer spending.

Another aspect to the effect of minority and female advancement in the workplace is turnover rates. Because of the “Glass Ceiling” effect, between 1980 and 1987, turnover rates for women in professional jobs doubled that of men. For African Americans in the same period, the turnover rate was two-and-a-half times that of whites. The major reasons cited for the high turnover rate for women were a lack of career growth, progress, or opportunity. Lower turnover rates can mean big savings for companies – one study stated that lower turnover saved a pharmaceutical company $500,000 in one year.

Affirmative action is a necessary and effective strategy to end racial and gender inequalities in this country. While moral and historical defenses of affirmative action are important, economic reasoning might be the most potent argument to win this battle. Opponents of affirmative action cannot ignore the economic disparities that exist in this country between races-racism and inequality are not specters from our past, but persist in the present day. Affirmative action not only compensates for historical injustice, but also aims to effect racial equity and justice in the present and future.

Affirmative action is a social good for moral, psychological, and economic reasons.

Amy Wood is a graduate student in the institute of Liberal Arts at Emory University.

Another Legal Assault on Pluralism

By Sarah Torian

Vol. 20, No. 1, 1998 pp. 16-19, 34

“It is preposterous,” says Harvard educator Gary Orfield of the Wooden case, a Georgia lawsuit filed in 1997. Challenging both the affirmative action programs at the state’s predominantly white institutions and the legitimacy of its historically black universities, the case illustrates some of the ironies of anti-affirmative action arguments, as well as the complexity and difficulty of eliminating vestiges of segregation in higher education.

This case, says Dennis Parker, who represents the NAACP LDF and the SCLC in the suit, will determine the future of “fair access by African-American students to higher education.” The suit alleges that the Board of Regents and Chancellor Stephen R. Portch failed to remove vestiges of de jure segregation from the University System of Georgia. The Chancellor and Board of Regents, who continue to endorse the use of limited affirmative action in the system, contend that they have removed all vestiges of the “once upon a time” de jure segregation. “This case is ahistorical,” Orfield continues, “It assumes a different world than what actually exists.”

Difficulties of Desegregation in Higher Education

represents a disturbing challenge to desegregation efforts that continues to confront all states, but especially those where segregation was formerly mandated by law; because of the individual’s choice in whether and where to apply for higher education, the government and administrators have limited powers in bringing about integration in the university system. Unlike elementary and secondary school systems, compulsory attendance cannot be used to achieve integration in higher education.

In 1992, Ayers v. Fordice, the first significant desegregation case in higher education since Brown v. the Board of Education, reached the Supreme Court. Jake Ayers, Sr., charged that Mississippi discriminated in its educational policies by offering a dual educational system for whites and blacks, with the schools for blacks receiving inferior resources and facilities.

In Fordice, the Supreme Court ruled that the state must do more than adopt race-neutral policies and identified four areas in which Mississippi’s policies appeared problematic: admissions policies, program duplication “mission” statements, and the number of public institutions. In a ruling that left neither party fully satisfied, the court decreased access by raising admission standards, increased funding and program offerings at historically black universities, and rejected the proposed mergers of predominantly white and predominantly black schools. It also raised the federal standards defining a successfully integrated university system.

Complaint Charges Schools “Racially Identifiable”

In February of 1997, Lee Parks, who earlier challenged Georgia’s majority black congressional districts, filed Wooden on behalf of eleven plaintiffs, seven white and four black. The Wooden complaint models language used in the Fordice ruling, asserting that the University System of Georgia has maintained a dual system of education with “racially identifiable” schools, program duplication, and “mission” statements that mention race. It also appropriates the language of Hopwood, attacking the use of affirmative action to eliminate the dual system. This two-pronged attack on the University System, makes the Wooden case unique.

In language that seems to echo arguments in support of affirmative action, the Wooden complaint outlines a visceral attack on the affirmative action measures used by the University System. Rather than declaring that the barriers to equal access and opportunity maintained under segregation have been removed and that a “level playing field” has been achieved, the Wooden complaint argues that those barriers remain and are quite powerful in Georgia’s system of public higher education. It charges that the policies of race-based admissions used by the state to remove the barriers were mere “tokenism.”

Gary Orfield agrees that Georgia’s affirmative action policies are “tokenism.” That is, however, where their agreement ends. “[Affirmative action as practiced in Georgia] is too small and, for that reason, has not done its job. The state needs much more vigorous affirmative action, not an elimination of what is already there.”

As examples of these vestiges of segregation, the complaint does not identify the University of Georgia, the state’s flagship school, where, of the over 28,000 students enrolled at the beginning of the Fall 1997 quarter, less than 2,000 (6.8 percent) were black. It does not point to the Medical College of Georgia where, of its 1997 incoming class of 129 medical students, there were no African Americans. It, likewise, does not mention that of the three other major universities and research centers in a state

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whose population is 27 percent black, only one has a black student population that exceeds 10 percent.

The complaint, instead, identifies as proof of vestiges of segregation the three state universities whose student bodies are 88 to 94 percent black, Albany State University, Fort Valley State University, and Savannah State University. Because these institutions, originally founded to serve black students in a state that denied them access to the better-funded all-white institutions, continue to matriculate blacks in such large proportions, the Wooden complaint charges that they are “racially identifiable” and, therefore, represent a vestige of de jure segregation.

The fact that these “racially identifiable” schools accept large numbers of students into their developmental studies programs is blamed for “increasing racial segregation and perpetuating the reputation for and actual academic inferiority of the traditionally black institutions.” These programs, which are not unique to the historically black institutions, offer college admission so that students who have not fulfilled all of the college preparatory requirements can do so and move on to regular college curriculum.

Plaintiffs “Remedies” Controversial

In July of 1997, Parks submitted to the court a list of fourteen suggested remedies to eliminate the vestiges of segregation. This list of fourteen steps includes several measures that education experts feel can only harm the Georgia University System and decrease black access to public education in the state. The first “remedy” on the list would remove race as a factor in all admissions decisions even though, as the plaintiffs admit, only the University of Georgia uses race in any way in its undergraduate admissions.

Director of Communications for the University of Georgia Tom Jackson defended the way in which UGA factored race into its admissions process saying, “Neither race nor any other single factor, except for academic record, can cause a student to be accepted or denied admission to the University of Georgia.”

Admission officers selected 90 percent of the 1997 freshman class at UGA using only the Freshman Index, a mathematical formula that combines SAT scores and high school G.P.A. The remaining applicants were evaluated using a formula called the Total Student Index. This formula still bases 68 percent of its weight on the SAT and G.P.A. but also takes into account other factors. It gives “preference” to applicants from rural areas since 59 percent of in-state UGA undergraduates in the Fall of 1997 were from the Atlanta metropolitan area. It gives “preference” to applicants who are children or grandchildren of alumni, an indirect racial preference for whites. It gives “preference” to men since women make up the majority of UGA students. This list of criteria also, in equal measure, gives “preference” to black applicants since, though blacks make up 27 percent of the state’s population and 18 percent of Georgia’s public higher education applicant pool, they have never approached ten percent of UGA students. But, as Tom Jackson stressed, “Race is never, in and of itself, a determining factor in our admissions process.”

Other remedies suggested by Parks include several measures that the University System instituted in a long range plan, conceived in 1996. For example, the state plans to transfer all developmental studies classes out of the state’s four-year universities and into the two-year institutions by 2001. This would require that all students who did not complete the college preparatory curriculum in high school fulfill them at a two-year institution before being admitted to a four-year institution. The complaint argues that the large percentage of developmental studies students at the historically black institutions perpetuates their inferiority. The complaint omits, however, the fact that six of the nine majority-white senior colleges accepted a freshman class, in 1994, of which between 16 and 28 percent were in developmental studies programs.

Relocation of developmental studies is a move that many fear will diminish access to higher education for blacks. According to the Southern Education Foundation, 45 percent of blacks in Georgia’s university system already are enrolled in two-year schools. Although two-year colleges are, in concept, access channels to four-year

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higher education, they frequently do not serve that purpose in practice.

three historically black universities have impressive retention rates. When students enroll at these schools, they frequently return the following autumn. Fort Valley State had the highest retention rate (75.2%) for regular admission freshmen among the eighteen senior colleges in 1994; Savannah State had the third highest (69.8%). All three historically black universities rank within the top six senior colleges in regards to retention rates of black students.

Another suggested remedy would merge historically black Savannah State University and Armstrong Atlantic University. The fact that the two schools, both located in Savannah, have not merged is, the complaint argues, “the starkest example of how the Board of Regents maintained rather than eradicated racially identifiable schools.”

University System spokesperson Arlethia Perry-Johnson quickly dismisses the idea of merging these two schools, “That is not a point of consideration. It is not on the table at all. [The two schools] have their own purposes and missions which have been embraced by the board.” Over the past twenty years, several studies have been conducted, examining the feasibility and effectiveness of merging these two institutions. They have all recommended that the two schools remain distinct. Savannah State focuses on technology and engineering and Armstrong Atlantic focuses on education, health and criminal justice.

Many education experts view this suggested remedy as a direct attempt to limit access for African-American students to four-year educations. In its evaluation of higher education desegregation in the southern states, the Southern Education Foundation wrote, “Without historically black colleges and universities, access for black students-already limited-would be drastically reduced.” Georgia, with only 25 percent of its first-time, full-time black students at four-year institutions attending historically black universities, is much less segregated than other southern university systems. Two-thirds of the other twelve Southern states enroll at least 50 percent of their first-time, full-time black four-year students at historically black universities.

Agreeing with the importance of the historically black institutions and the irony of suggesting closing or merging these schools, Gary Orfield said, “The burden should not fall on the historically black schools to integrate. They have always been open. To close black schools would be asking black students to give up something that has worked very well without any assurances that anything would take its place.”

State Says “Been There, Done That”

Georgia’s Senior Assistant Attorney General Alfred L. Evans, Jr. has, in response to Parks’ unique manner of stating his attack on affirmative action, laid out a similarly unique defense. He contends that all vestiges of the de jure segregation embraced by the state’s system of higher education, keeping all black undergraduates out of the University of Georgia until 1961, have been removed. Acknowledging the “current institutional variations in racial, gender, religious affiliation, and national origin,” the state argues that these variations “are the result solely of the decisions made by private individuals about going to college – whether, when, and where.”

Though he is defending the practices being challenged by the plaintiffs, Evans does not agree with some of them. In response to the use of race by UGA admissions officials, Evans has said, “Preferences are unfair. It would be the same as saying that I want to admit someone who likes spaghetti which would unfairly exclude people who do not like spaghetti.” When questioned as to preferences based on other criteria, he responds, “We have never taken the view that you can’t have preferences for geography, for demographics.” Evans does support affirmative action involving recruiting and similar measures.

In support of this argument, Evans describes Georgia’s desegregation efforts under the guidance of the Department of Education’s Office of Civil Rights between 1970 and 1989. Under the OCR’s guidance, the University System made substantial changes in certain areas. It increased the average per student funding, provided more than fifteen million dollars for enhancement projects, established twenty-one new academic programs at the three historically black schools, and enacted recruitment efforts to attract minority students to the majority-white institutions and to encourage students at two-year institutions to transfer to senior institutions. It also implemented several programs to locate and attract qualified minority candidates.

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“There has been substantial investment of facilities at the historically black colleges and universities,” says Robert Kronley, senior coordinator for the Southern Education Foundation, “but there is still a very long way to go to make up for the decades that the state did not invest equally in those schools.”

In 1989, a positive OCR evaluation removed Georgia from federal supervision. According to the OCR’s standards at that time, though a state was only required to comply with a federally-approved desegregation plan, not demonstrate actual changes in the racial makeup of the system or individual schools.

The state also cites several facts that, it argues, demonstrate that no “backsliding” has occurred since1989. Asserting that the alleged “racial identifiability” of black institutions was not responsible for the small number of minority students at the majority-white institutions, the defense correctly points out that over 80 percent of all black students enrolled in the University System were enrolled in majority white schools. Black enrollment increased 52 percent between 1990 and 1996 while white enrollment increased only 1 percent. In fall 1996, the 43,609 black students in the University System comprised 21.3 percent of the total 204,332 System students.

Although Robert Kronley applauds the efforts made by the University System, he stresses that, though the number of black students has increased substantially, proportionately the numbers have not increased. As a percentage of the overall University System of Georgia enrollment, black students have only increased about 6 percentage points during the six year period. Also, black representation has been falling over the past two years at the University of Georgia at Athens. Fall black enrollment dropped by 132 between 1995 and 1997.

The state’s heavy reliance on the OCR evaluation in its defense is also questionable. Raymond Pierce, Deputy Assistant Secretary of the Office of Civil Rights explains that this positive evaluation was based on a different application of OCR’s standards than are applied today. After the ruling, state University Systems were required not only to implement desegregation measures, but to demonstrate the effects of these measures as well as efforts. All states, including Georgia, that had earlier been released from supervision were warned that they could be returned to federal supervision if they were found to be harboring any vestiges of segregation. “Ayers did not destroy the earlier criteria,” Pierce explains, ” It affirmed them.”

The University System of Georgia has continued to exert a great deal of effort to improve access to higher education. “Of the previously de jure segregated states in the South,” Kronley says, “Georgia and Maryland are beginning to have the most comprehensive programs that work to link education from the elementary and secondary levels through college.”

The P-16 program and the PREP program represent Georgia’s efforts to build this comprehensive system. P-16, initiated in 1995, is a program designed to link the curricula of each level of the education system from preschool through bachelors degree, providing smooth transitions from one level to the next. The PREP Program, through academic enrichment programs and campus visits, helps students in at-risk situations get on the right track for admission into the state’s University System.

These efforts are of increased importance as the University System moves to raise admission standards and remove developmental studies programs from its four-year institutions. “While we are raising the bar on one side, we are raising the level of support on the other,” insists Arlethia-Perry Johnson, ” This will provide a safety net so that access to education will not be diminished.”

Kronley agrees. “Most states are moving now to consider higher admission standards and tougher high school graduation requirements. These are good, but only if they are phased in over time. For example, Mississippi instituted new admission standards and high school requirements in one year and the results were terrible. Georgia, on the other hand, is implementing the higher standards over a six to seven year period. That move is a good faith implementation.”

HOPE scholarship is another example of Georgia’s efforts to increase access to higher education. Funded by Georgia’s Lottery for Education, the HOPE Scholarship is available to any Georgia resident who graduates from high school with a 3.0 G.P.A. and maintains that average while in a Georgia college. Although, as Gary Orfield notes, “The HOPE scholarship is financial aid distributed on a non-need basis. In effect, it compounds the inequality,” it does provide a motivating incentive for student success both in secondary and post-secondary schooling.

Intervenors Seek to Protect Rights

Although the state’s defense challenges the plaintiffs’ attempts to remove all race-based admissions, many people in Georgia do not feel represented in light of the way the state is framing its defense. This dissatisfaction has culminated in a “motion to intervene” submitted by the NAACP, SCLC, and seventeen black high school, college, and graduate students. Intervenors felt that the remedies sought by the plaintiffs would effect a drastic reduction in

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educational opportunities for Georgia’s black students at all its four-year institutions.

The intervenors also assert that the defendants are unable simultaneously to represent the interests of black students and interests of the state. To represent the students’ interests in protecting equal access to higher education, the intervenors contend, the state would need to acknowledge that all vestiges of de jure segregation have not been removed. Such an admission, however, could result in the state being remanded to federal supervision which is not in the state’s interests.

The case is still in its early stages. The discovery period, during which the parties will gather information to support their cases, will continue until May 31, 1998. At that point, Eleventh Circuit U.S. District Court Judge B. Avant Edenfield will rule on the defense’s motions to dismiss and to challenge the legal “standing,” an ability to demonstrate personal injury, of the remaining plaintiffs.

Says Dennis Parker, “I expect it should go to trial this year. It is a much more straightforward case than Ayers, so I don’t expect it to last more than a few weeks.”

Sarah Torian is an editorial assistant at SRC and recently received her masters degree in Southern Studies from the University of Mississippi.

Republican Effort Backfires: Resounding Defeat for Affirmative Action Foes in Georgia

By Ellen Spears and Sarah Torian

Vol. 20, No. 1, 1998 pp. 20-21

Opponents of affirmative action suffered a resounding defeat in the Georgia legislature during the 1998 session, when amendments banning affirmative action in the state were killed. A broad coalition of pro-equity advocates succeeded in retaining affirmative action programs by working effectively within the shifting dynamics of election year politics. Republican sponsors who had hoped to split Democratic constituencies found their party divided instead.

Cobb County Republican Earl Ehrhart (R-Powder Springs) led the attempt to outlaw the few modest programs that promote inclusion in public higher education, contracting, and hiring. His effort was defeated February 18 by a Democratic-sponsored substitute in a 98 to 53 vote in the Georgia House. The Senate killed a similar amendment March 5 by a margin of 32 to 21. And, the “local legislation” Ehrhart succeeded in passing through the House repealing affirmative action in his home county, Cobb County, was later blocked by Republican state senators from the Cobb delegation.

High Stakes Partisan Political Battle

“It was one of the few instances where the Democratic leadership and the Legislative Black Caucus were able to also secure some Republican allies,” said Rep. Bob Holmes (D-Atlanta). In the House vote, eleven Republicans voted for the Democratic alternative and nine “took a walk,” avoiding the vote. “Still, when push came to shove on March 5, when Senate Republicans introduced Ehrhart’s [anti-affirmative action] amendment,” says Dan Levitas of the Georgia Rural Urban Summit, “they demanded party discipline and got it.” Only one Republican senator voted no.

Republicans tried to “manipulate the controversy for partisan purposes,” says Laughlin McDonald, Southeast Regional Office Director of the ACLU. As the 1998 legislature took its seat, Republicans were just twelve votes short of overcoming decades of Democratic dominance in the Georgia House and seven shy in the Senate. Neither Democratic Governor Zell Miller nor Lt. Governor Pierre Howard is running again in 1998, leaving open seats at the top of the ticket and all the state’s elected officials facing re-election.

“The Republicans had what they thought was a wedge issue which will divide the black and white Democrats, and allow them to take over the legislature,” says McDonald. But, in fact, says Holmes, “some of the internecine GOP battles have accrued to the benefit of Democrats during the session.”

Opponents’ coordinated strategy

The assault on affirmative action for political ends in Georgia is not an isolated or independent effort. “As in California and Texas,” says equal opportunity specialist and attorney Rodney Strong, “a network of right-wing organizations has made it a top priority to roll back affirmative action.” Ehrhart himself testified in the Georgia House Judiciary Committee meeting February 2 that he had met “over the weekend” to revise the language in his bill with Clint Bolick of the Washington-based Institute for Justice, and John Carvin, who defended Proposition 209.

The strength of affirmative action opponents comes from “access to media, sophistication of message, and money,” says Levitas. “It does not derive from a widespread sentiment at the grassroots level for abolishing affirmative action as all the polling data clearly indicates.”

Ironically, “there isn’t very much at all in the way of affirmative action in this state,” says McDonald. A House

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Study Committee on Minority Business Enterprise Participation in State Contracts and the Advisory Committee, chaired by William S. Cannon, estimated in January, 1992: “that minority contractors are awarded no more than one percent of the contracts issued each year by the studied agencies.” Cannon’s assessment in 1998 is that not much has changed since his earlier report.

Still, if Ehrhart’s bill had passed, important equal opportunity programs that have aided thousands of Georgians in overcoming discrimination would end. And a repeal could have been costly in federal dollars. For example, Robert Bradley, Equal Opportunity administrator from the Georgia Department of Transportation (DOT) testified at the House Judiciary Committee hearing October 29, 1997, that the department would lose $600 million in federal funds if it does not comply with federal affirmative action regulations. And, more than $400 million in federal dollars for Georgia’s thirty-four public colleges and universities could be endangered. (See “Legal Assault,” page 16).

Broad Alliance Critical

The multi-sided attack on the modest programs in Georgia was met with coordinated action by an unprecedented coalition of civil rights organizations, women’s groups, minority business leaders, legal experts, labor unions, equal employment opportunity officers, and representatives of local jurisdictions seeking to maintain voluntary programs.

Many of the organizations participate in the Georgia Rural Urban Summit, a coalition that has made defeating the anti-affirmative action measure their main policy priority for the past year. The Summit convened meetings with legislators and provided a stream of faxes and e-mail that kept supporters informed of developments at the General Assembly.

Different views emerged among affirmative action supporters over the Democrats’ plan to offer substitute language, which would be introduced to counter Ehrhart’s bill. But potential differences in strategy over alternative language became an asset. The debate over language bought valuable time, for organizing phone calls, a letter writing campaign, and protests.

Maintaining an alliance between black and white Democrats was crucial to defeating the anti-affirmative action bill, explained Legislative Black Caucus member Rep. Holmes. But the Democrats’ early versions made concessions to white Democrats that also would have harmed existing affirmative action programs and endangered that alliance.

Faced with the prospect that Democrats who control the legislature would pass a damaging bill, leading civil rights attorneys drafted alternative language that aimed to “do no harm.” But Democrats altered the language before it was introduced, leaving local programs potentially vulnerable in court. “It’s an unguided missile that we don’t know where it’s going to land,” said Sen. Edward Boshears, (R-Brunswick) about the bill during Senate debate.

Civil rights organizations spoke out against any language that fell short of extending opportunity, raising instead the need for comprehensive civil rights measures. “We had respect for the lobbyists, the legal minds, the advocates, and the legislators,” said Concerned Black Clergy President Rev. Tim McDonald, “My strategy was to take it to the streets, to use the media to educate the public.”

The Southern Christian Leadership Conference focused its annual King Birthday march on the affirmative action fight, leading a diverse group into the Georgia capitol rotunda to protest ending affirmative action programs. The National Youth Connection, led by Morehouse College student Rev. Markel Hutchins, spearheaded a Stand for Affirmative Action rally January 22 of nearly a thousand students and allies supporting affirmative action from Centennial Park to Atlanta City Hall, in pouring rain. Concerned Black Clergy and other groups rallied in Ehrhart’s home district in Cobb County on February 2.

Major business leaders, who were crucial in the victory on the Houston affirmative action initiative, were largely absent from the Georgia fight. But women were outspoken in support, including businesswoman Carolyn Stradley, owner of C S Paving, who spoke out powerfully at a Trust Georgia’s Women press conference. “I don’t think that before affirmative action, a paving company run by a non-married woman would be considered for many contracts,” insisted Stradley.

The effort succeeded in part, said Elizabeth Appley, who lobbied on behalf of the Women’s Policy Group and the Atlanta Board of Education, “because we were able to focus the attention of legislators and the public on the reality that all of our lives-crossing socio-economic, racial, ethnic, and geographic lines-are improved by supporting diversity, inclusion, and equal opportunity.”

With this legislative battle behind them, Georgia advocates are preparing for the next challenge. The Atlanta Public School system is under fire for its efforts to be inclusive in contracts and purchasing. A suit filed by Prior Tire Company is likely to come to trial the week of April 15 in Atlanta before Judge Julie Carnes at the Richard Russell Federal Building.

The fight has also awakened demand for a comprehensive civil rights bill, which would allow for victims of discrimination to recover costs of successful claims in state court and establish a state enforcement agency.

To get involved or seek out strategies, see the resource list on page 26.

Sarah Torian is an editorial assistant at SRC and recently received her masters degree in Southern Studies from the University of Mississippi.

Steps Forward and Back: An Affirmative Action Timeline

Staff

Vol. 20, No. 1, 1998 p. 22

1953: Harry Truman’s Committee on Governmental Contract Compliance urged the Bureau of Employment Security to “act positively and affirmatively to implement a policy of nondiscrimination” in its programs.

1961: John F. Kennedy signed Executive Order 10925, invoking the term “affirmative action” for the first time at the federal level.

1964: Congress passed the Civil Rights Act of 1964, a set of laws that prohibits discrimination in privately-owned facilities open to the public, in federally-funded programs, and in both private and public employment. Created the Equal Employment Opportunity Commission to prevent discrimination, but placed powers of enforcement in the realm of the courts.

1965: Lyndon Johnson signed Executive Order 11246 requiring “federal contractors to take affirmative action to provide equal opportunity without regard to a person’s race, religion, or national origin.”

1970: The Philadelphia Plan, by Richard Nixon, emphasized numerical goals and timetables in construction. Revised in 1971 to include women.

1971: Griggs v. Duke Power Co.- Supreme Court restricted the use of hiring standards that effectively excluded minorities unless they were shown to be a job-related necessity.

1972: Congress passed the Equal Employment Opportunity Act, extending the EEOCs jurisdiction, giving greater emphasis to systematic discrimination, and broadening the right to file class-action suits.

1978: Regents of University of California v. Bakke – Supreme Court ruled that the University of California could not reserve spots for minority applicants, but that it could consider race as one of many factors.

1978: United Steel Workers v. Weber – Supreme Court upheld voluntary affirmative action plans even in absence of past government discrimination and right of employers to use race as a factor to promote racial diversity.

1980: Fullilove v. Klutznick – Supreme Court upheld minority contract set-asides for Federal programs in order to compensate for past discrimination.

1987: U.S. v. Paradise – Supreme Court upheld preferences in hiring and promoting blacks to compensate for discrimination in the Alabama State Police.

1989: Richmond v. J.A. Croson Co. – First major setback in affirmative action in construction industry since 1970. Struck down a Richmond, Va. law that set-aside 30 percent of its construction contracts for minorities.

1989: Wards Cove Packing Co. v. Antonio – Reversed Griggs by ruling that an employment practice with apparent discriminatory effect can be justified if it “serves, in a significant way, the legitimate goals of the employer.”

1990: Metro Broadcasting v. FCC – Supreme Court upheld minority preferences in broadcast licensing to achieve diversity in the nation’s airwaves.

1991: Congress passed Civil Rights Act of 1991, intending to balance the previous decade of Supreme Court rulings. Helped individual victims of discrimination who seek redress through the courts.

1994: Kirwan v. Podberesky – Appellate Court ruled that the University of Maryland’s history of discrimination did not justify the existence of thirty race-based merit scholarships. Supreme Court declined to hear the appeal.

1995: Adarand Constructors v. Peña – Supreme Court overturned Fullilove and Metro Broadcasting decisions. Established “strict scrutiny” criteria for reversing past discrimination. Declared that discrimination against whites should be scrutinized by the same standard as discrimination against any minority.

1996: Hopwood v. Texas – Appellate Court refused to follow Bakke decision. Ruled the school could not use race as a factor even for the sake of diversity. Supreme Court declined to hear the appeal.

1996: Proposition 209 passed by initiative in California. Prohibits use of race, sex, color, ethnicity, or national origin in hiring, promotion, and contracting in state agencies. Supreme Court declined to hear the appeal.

1997: Taxman v. Piscataway School Board – Appellate Court ruled that the only justification for using race in hiring was to remedy past discrimination. Out-of-court settlement prevented the Supreme Court from ruling.

SRC Survey Results Suggest Broad Support for Fairness Programs

By Ellen Spears

Vol. 20, No. 1, 1998 p. 23

“The country is witnessing a concerted and well-planned campaign to destroy affirmative action for women and minorities. In the end that effort will fail, partly because those behind it are totally misreading public opinion.”

– Veteran pollster Louis Harris, writing in The Future of Affirmative Action, 1996.

By now we know that despite the momentum that appears against it in the courts and the press, polls reveal a majority of Americans support affirmative action. An even greater number support specific programs that assist women and people of color in overcoming the effects of present and past discrimination.

As evidenced by the vote on the Houston, Texas initiative in November, 1997, the language of the debate is key: “Shall the Charter of the City of Houston be amended to end the use of affirmative action for women and minorities in the operation of the City of Houston employment and contracting, including ending the current program and any similar programs in the future?” When Houston voters faced that question, rather than the misleading preferential treatment language of Proposition 209, they voted 54.5 percent to 44.5 percent to retain the Minority, Women, and Disadvantaged Business Enterprises (MWDBE) and related programs sponsored by the city.

Public opinion on affirmative action is complex : what various constituencies are willing to do to remedy the effects of past and present discrimination has a great deal to do with how they perceive the facts about and causes of discrimination. Polling data from surveys conducted by the Southern Regional Council and others illustrate some of the nuances in public attitudes about the debate. SRC’s survey was a national telephone poll conducted by John Doble Research Associates which questioned 1216 randomly selected adults in September, 1996. A further analysis of the survey data was carried out by Tom Smith, Director of the General Social Survey at the National Opinion Research Center. The project is supported by the Charles Stewart Mott Foundation.

“Several attitudes are associated with more support for affirmative action policies,” writes Tom Smith, “favoring liberal priorities, believing that inequality results from discrimination and not from negative personal traits, agreeing that many groups are discriminated against and that black people are discriminated against in many areas of life.”

Whites who see more discrimination against black Americans support more measures to remedy racial inequalities. For example, 56 percent of whites who see a great deal of discrimination favor reserving openings in college for black students, versus only 32 percent of whites who see none.

There is a strong gender gap in support for affirmative action. Despite widespread belief to the contrary, nearly half of men support affirmative action (48 percent). And 15 percent more, almost two-thirds of women (63 percent) support affirmative action.

The survey results suggest frames for discussing affirmative action that garner the broadest support. “[S]upport for affirmative action is highly conditional on how the policy is presented and what steps are actually called for,” says Smith. “Support is greatest when measures emphasize equal opportunity, reject the use of quotas, highlight women, and stress the qualifications of members of the targeted group. Support is weakest when measures are described as quotas or preferential treatment, mention only racial minorities, and refer to possible discrimination against whites or white men.”

“Opposition to affirmative action,” notes Tom Smith, “centers more on a caricature of it rather than on a balanced description of the policy.” The talking points (page 24) incorporate the findings from this and other polling.

What both researchers stress is the need for leadership in activating public opinion in support of affirmative action. “Leadership is critical,” concludes John Doble. “Judging from the breadth and depth of support people gave to remedies to reducing racial inequality, the public will respond to a call from leadership. There is broad, latent support for a host of measures. But the depth of public support suggests most white Americans do not see this as an urgent issue that demands national action. If leaders choose to ignore this issue, most Americans will, the results suggest, silently acquiesce.”

Ellen Spears is managing editor of Southern Changes.

Talking Points: The Truth about Affirmative Action

Staff

Vol. 20, No. 1, 1998 pp. 24-25

The recent round of struggle over the future of affirmative action can be traced to events in California in the early 1990s. An anthropologist in the California university system, Glynn Custred, had been trying to focus public attention on the issue out of a conviction that affirmative action would force California down the road of racial strife. Custred believed that since the press was ignoring affirmative action, his only hope for a public debate was through a citizen initiative (which ultimately became California’s Proposition 209). He gained an ally for his viewpoint in William Rusher, a journalist who wrote about Custred’s efforts in his syndicated column. This led to the issue being taken up by William F. Buckley, Pat Buchanan, and other conservative pundits. The turning point came in 1994 when leading Republican presidential candidates Bob Dole, Phil Gramm, and Pete Wilson embraced opposition to affirmative action, compelling Bill Clinton to order the first-ever presidential review of affirmative action.

Since then, Republicans have become the majority in both houses of Congress and have continued to oppose affirmative action. Their arguments have been ideological, and full of distortions, fears, mischaracterizations, and myths. They demonize affirmative action as a system of “quotas” and “preferences” designed to give unfair advantages to unqualified minorities and women, with full knowledge that casting it in this way is the best strategy to generate public opposition. These tactics have been effective not simply because the public gives into such appeals, but because affirmative action is wrongly cast as a set of policies which violate Americans’ sense of fairness.

Republican opposition is a calculated effort to reap political rewards rather than engage an honest debate about the future of affirmative action. Race is being used as a partisan wedge. Evidence of this strategy can be seen in a document entitled “Language of the Twentieth Century: Affirmative Action,” created by Luntz Research Companies and used by the Republican Party to coach members on how to couch debate on the issue. According to the document, “Affirmative action is one of the most ideologically polarizing issues on the political map. A good communication effort makes this issue a real winner for most officials.”

Supporters of affirmative action have been often slow to respond and less effective in shaping the current public debate than their opponents. For the future of affirmative action to be debated on its merits, the public needs facts. What follows is a review of the leading myths about affirmative action, accompanied by talking points which reflect the reality. The information was compiled by the American Association of University Women with supplemental information from the Leadership Conference on Civil Rights and the Bureau of National Affairs.

Myth: Affirmative action gives minorities and women preferences. Reality: Affirmative action does not require preferences. Nor do minorities and women expect or assume that they will be given preferential treatment. Race, ethnicity, and gender are only a few of the factors considered when reviewing qualifications of job applicants, those seeking admission to institutions of higher learning, and contractors seeking federal contracts.

Myth: Affirmative action means quotas. Reality: This is perhaps the most disingenuous approach used by critics of affirmative action, leading to the erroneous notion that employers are required to hire a fixed percentage of minorities and women regardless of qualifications. Quotas are specifically outlawed by OFCCP regulations implementing Executive Order 11246, which state that “Goals must not be inflexible quotas which must be met, but must be targets reasonably attainable.” But affirmative action provides opportunity for minorities and women. Federal contractors with fifty or more employees are required to establish flexible goals and timetables to close any gaps between the proportion of minorities and women in the labor pool and those in the workforce. Contractors are only required to make a “good faith” effort and face no legal sanctions for not reaching the goals and timetables. Race, ethnicity, and gender are only a few of the factors taken into consideration. An unqualified person cannot legally be chosen over a qualified one.

Myth: Affirmative action leads to reverse discrimination. Reality: “Reverse discrimination” is very rare. A 1995 analysis of 3,000 discrimination cases by professor Alfred Blumrosen of Rutgers University Law School for the U.S. Department of Labor revealed affirmative action does not lead to “reverse discrimination.” Blumrosen found that of the 3,000 discrimination cases filed, only 1 to 3 percent of them involved claims of reverse discrimination. Of these, most of the complaints were unfounded and involved white males who erroneously assumed that if a minority or a woman got the job, it was because of race or sex and not qualifications.

Myth: Unqualified people are hired and promoted for the sake of affirmative action. Reality: It is illegal for affirmative action plans to compromise valid job or educational qualifications. Such plans must be flexible, realistic, reviewable, and fair. The Supreme Court has found that there are at least two bases for voluntary affirmative action by employers under Title VII: (1) to remedy a clear and convincing history of past discrimination, and (2) to cure a manifest imbalance in the employer’s workforce. Affirmative action programs strive to hire the most qualified individuals, while achieving equality of opportunity.

Myth: Affirmative action is not needed anymore. Reality: Although there have been gains in employment, entrepreneurship, and higher education by minorities and women, these groups still lag far behind white males. This is especially true in the nation’s largest companies where African Americans hold .6 percent, Hispanics hold .4 percent, Asians hold .3 percent, and women hold 3-5 percent of senior management positions. In addition, minorities and women earn roughly 70 percent of what white males with equal qualifications in the same job earn. Minorities are less likely to go to college than whites, and although women make up nearly half of the student population at many institutions of higher education, they receive only 11 percent of the science and math degrees awarded and are less likely to earn advanced degrees than white males. Affirmative action is the only way to ensure equal opportunity for minorities and women.

Myth: Affirmative action guarantees success based on race, ethnicity, or gender. Reality: Affirmative action does not guarantee outcomes. It only ensures equality of opportunity for those who have been historically denied access to jobs and education because of the race, gender, or ethnicity. Beneficiaries of these policies must still perform at the same level expected of everyone else in society.

Myth: Affirmative action programs that aid the economically disadvantaged-this is needs-based programs-are enough to address discrimination. Reality: Discrimination is not limited to the economically disadvantaged population. Minorities and women also face discrimination as they climb the corporate ladder and are stalled by the “glass ceiling.” In 1995 the U.S. Department of Labor’s Glass Ceiling Report revealed that white males make up less than 45 percent of the workforce, but hold 95 percent of the senior management positions in Fortune 2000 companies. Needs-based affirmative action would not overcome the barriers that minorities and women face in the workplace, especially at higher levels.

Myth: Because we already have anti-discrimination laws like Title VII, we do not need affirmative action. Reality: Anti-discrimination laws are designed to address the problem after the fact through the courts. Affirmative action is designed to be corrective and proactive, helping to make amends for past discrimination and preventing it down the road. Affirmative action is a far less costly and less disruptive means of ending discrimination.

Myth: Underrepresentation of minorities and women in the corporate world (or other high-paying jobs) is not due to discrimination. Reality: There are other factors that account for the lack of minorities and women in the corporate world, but discrimination is the principal reason. Therefore, past and present discrimination must be dealt with. A study of the 1982 Stanford MBA graduating class found that in 1992, 16 percent of the men were CEOs compared to only 2 percent of the women. Twenty-three percent of the men became vice presidents, while only 10 percent of the women did. Barriers to employment and promotion still exist and affirmative action is the most effective means by which to overcome them.

Myth: Affirmative action does not have a place in government contracts. Reality: The government created federal procurement programs to counter the effects of discrimination that created barriers for minority- and female-owned businesses. Only qualified businesses can have contracts. Federal procurement programs are still needed because minorities and women receive only 8 percent of the $200 billion in government contracts. Without affirmative action, the share of contracts awarded to minorities and women would fall greatly.

Myth: The earnings of women are depressed because women work fewer hours per week and have more interruptions over their working lives than men and not because of discrimination. Reality: The wage disparity data most often cited comes from the Department of Labor and the Census Bureau and pertain to year-round, full-time, permanent workers. The data does not compare full-time male to part-time female workers, nor does it compare permanent workers to part-time or contingent workers.

Affirmative Action Resources

Staff

Vol. 20, No. 1, 1998 p. 26

American Association for Affirmative Action (AAAA)
• 3905 Vincennes Rd., Suite 304
  Indianapolis, IN 46268
  317-872-7093
  http://www.fga.com/aaaa
  • Region IV: The Southeast
    Michael Cooper, Director
    Fulton County Contract Compliance
    141 Pryor St, Suite 2034
    Atlanta, GA 30303
    http://www.quada.org/aaaa4.htm
    
    
    Americans United for Affirmative Action
  • 400 Colony Square, Suite 200
    1201 Peachtree St., NE
    Atlanta, GA 30361
    404-870-9090
    http://www.auaa.org
    American Civil Liberties Union (ACLU)
  • 132 W. 43rd Street.
    New York, NY 10036
    212-944-9800
    http://www.aclu.org
    Americans for a Fair Chance
  • 1730 Rhode Island Avenue, N.W.
    Suite 303
    Washington, D.C. 20036
    202-822-9221
    Colorado Progressive Coalition
  • 1420 Ogden Street.
    Denver, CO 80218
    303-866-0908
    Georgia Rural Urban Summit
  • 340 King Avenue
    Athens, GA 30606
    404-373-5169
    Leadership Conference on Civil Rights
  • 1629 K Street, N.W.
    Suite 1010
    Washington, DC 20006
    202-466-3311; 202-466-3435 (fax)
    http://www.civilrights.org
    National Organization for Women (NOW)
  • 1000 16th Street, N.W.
    Suite 700
    Washington, DC 20036
    202-331-0066
    http://www.now.org
    National Association for the Advancement of
  • Colored People (NAACP)
    4805 Mount Hope Drive
    Baltimore, MD 21215
    410-521-4939
    http://www.naacp.org
    People for the American Way
  • 2000 M Street NW, Suite 400
    Washington, DC 20036
    202-467-4999
    Project Equality
  • 6301 Rockhill Road, Suite 315
    Kansas City, MO 64131-1117
    816-361-9222
    Southern Regional Council
  • 133 Carnegie Way, Suite 900
    Atlanta, GA 30303
    404-522-8764
    http://www.src.w1.org
    Wider Opportunities for Women
  • 1325 G Street, NW, Lower Level
    Washington, DC 20005
    202-638-3143
    
    

  
  
  

  
  

  
  

  
  
  
  

  
  
  
  

  
  
  
  

  
  

  
  

  
  
  

  
  
  

  
  
  
  

  
  
  

  
  
  
  

A Fair Assessment

Reviewed by Shirley Jackson

Vol. 20, No. 1, 1998 pp. 27-28

Bryan K. Fair, Notes of a Racial Caste Baby: Color Blindness and the End of Affirmative Action, New York and London: New York University Press,1997.

A coherent discussion of the politics surrounding affirmative action can be located in Bryan K. Fair’s, Notes of a Racial Caste Baby: Color Blindness and the End of Affirmative Action. Fair, one of eight children born to a single mother in Columbus, Ohio, is currently an associate professor of law and assistant academic vice president at the University of Alabama. Fair acknowledges that remedial affirmative action has benefited him. A graduate of Duke University and the UCLA law school, Fair was able to take advantage of the remedial affirmative action programs in place at both institutions. Speaking from personal experience and as a law professor and administrator, Fair presents a well thought-out analysis of the key issues surrounding affirmative action and color blindness in the United States.

Fair’s text is a combination of two different types of essays. In the first part of the book, he draws upon personal experiences and family background to set the stage for his later in-depth analysis of key civil rights legislation and court decisions. We are thus provided Fair’s experiences and those of his mother and siblings, as an example of life on welfare, single motherhood, ghetto life, and inadequate educational institutions in which African-American youth, and males in particular, are shortchanged.

In the second half of his book, Fair captures the essence of many debates, including both the purpose of affirmative action and on whether to continue its implementation. He believes we need to be made aware that American society is not fair, and never has been. As such, there remains a great need for remedial affirmative action.

Fair’s title references Steven Carter’s Reflections of an Affirmative Action Baby, reviewed by Julian bond in Southern Changes, February 1992, outlining black male conservative objections against affirmative action.

Fair enumerates both clearly and concisely the concerns evident in this era of heated political and social debate surrounding affirmative action. For Fair, we are in desperate need of sources which clearly outline the basis of affirmative action policies and programs in employment and education, as well as the difficulties involved in meting out remedial affirmative action. Fair acknowledges what seems to be lacking in much of the discourse on affirmative action. He convincingly argues for a context in which to frame the debate, an understanding of what is meant by remedial affirmative action for minorities in contrast to what has historically been affirmative action for white males, and the competing goals of having a society which is color blind versus one that is explicitly race conscious.

Fair posits race consciousness should not be viewed negatively. However we choose to view society, as being either color blind or race conscious, we need to engage in a discussion on alternatives to current affirmative action policies and programs. He attacks the notion that society is color blind and distinguishes it from the perception that society should be color blind. Additionally, Fair notes that it is not surprising that the color blind position is taken by those who feel color blindness is necessary condition for equality.

Color blindness is problematic for those who see race consciousness as a necessary component in the move towards the equality guaranteed by the U.S. Constitution. This is in sharp contrast to opponents of affirmative action who believe the Constitution has already equalized American society on the basis of race. Opponents of affirmative action seem to imply, if not directly state, discrimination will simply go away once there is no longer the “barrier” of affirmative action. The problem with color blindness is the belief that society will treat individuals equally if there is no such thing as affirmative action. This position, according to Fair, belies the fact that racial groups have been treated differently even when there were no affirmative action policies and programs. Color blindness ignores those differences which exist, and therefore, lies at the root of the problem.

At the same time affirmative action opponents are arguing society should be color blind, they imply America once was. Fair cites Reconstruction legislation as historical proof the lack of color blindness. It quickly became apparent that equal treatment under the law was not going to occur in the aftermath of the Civil War. In the aftermath of the civil rights movement, we note a backlash against affirmative action while America proclaims equality of opportunity. It appears, says Fair, affirmative action foes believe affirmative action policies and programs have done their job, and should be abolished.

Fair examines how the idea of a color blind society is a strong selling point for anti-affirmative action proponents and has found supporters, but nonetheless is an illusion. Fair notes, even those individuals who have not benefited from affirmative action policies and programs are discriminated against. By simply ridding ourselves of these programs will not result in a simple fading away of racial discrimination.

Although affirmative action is condemned by critics as “reverse discrimination,” there seems to have been little concern by affirmative action opponents as to how it historically worked to affirm whites’ privileged positions in society. Fair notes that historically there has been affirmative action for whites. This acknowledgment by Fair makes us aware of the irony that even with remedial affirmative action, there still exists affirmative action for whites. This is disguised as everyday life. When a white person is hired over another white, there is no cry of discrimination (unless perhaps it is a woman chosen over a man). Fair states while affirmative action has historically existed and has benefitted whites males in particular, their abilities were rarely questioned. He claims under remedial affirmative action for racial and ethnic minorities, their abilities are under constant scrutiny. Fair is only partially correct here. There were challenges made regarding the abilities of certain white ethnic groups, such as the Irish, Italians, Jews, and Polish. In this respect, there were some challenges to the abilities white ethnic groups, but subsequently challenges to their abilities have alleviated while those of racial groups have not abated to the same degree.

In exposing the myths of affirmative action, Fair discusses “racial realism” and the racial disparities and economic inequality in the U.S. Statistics show that African Americans lag behind whites on all indicators of social equality. Fair is of the opinion we must do what we can to rid ourselves of the reality of racial caste. In the quest for an elimination of caste through implementation of remedial affirmative action, Fair includes a discussion of the need for race- and gender-based affirmative action plans, as opposed to class-based affirmative action. Race- and gender-based affirmative action are necessary if we are to provide a workable plan to deal with America’s history of white racial and male oriented privilege. As a society we should not be duped into believing America’s past has held no consequences for the future. This distorts our ability to look at the past as informing the present. It also prevents us from seeing that change is both possible and necessary.

Fair concludes that affirmative action is a necessity in American society. He further asserts, we cannot assume that with the dismantling of affirmative action, America will suddenly become color blind. As long as a faction of American society believes society is color blind, it will not support affirmative action. The reality demands that America engage in a deeper investigation of the realities of race. In particular, America needs to rethink its position on the history of race relations and the solutions it has promoted for solving the “race problem.” One way to accomplish this is by moving beyond simply talking about quotas and whether or not affirmative action is “reverse discrimination” and look at the realities of difference in American society.

It is clear that a main problem of the twentieth century continues to be that of the color line. Fair notes the disparities between Blacks and whites in income levels, high school and college completion rates, single motherhood, and health and mortality rates. It is clear racial caste is not simply a myth, just as it is clear American society is not color blind. Until we recognize this, we will continue to refuse to make real efforts aimed at changing the racial caste system in America.

Seeing Beyond Race

Reviewed by Shirley Jackson

Vol. 20, No. 1, 1998 pp. 29-30

Ellis Cose, Color-Blind: Seeing Beyond Race in a Race-Obsessed World, New York: HarperCollins, 1997

Ellis Cose, a contributing editor for Newsweek, and author of The Rage of a Privileged Class, The Press, A Man’s World, A Nation of Strangers, and The Rebirth of Community Power, focuses primarily on race. In his latest book, Color-Blind: Seeing Beyond Race in a Race-Obsessed World, Cose examines the belief that equality in American society will come with color-blindness. He points out the problems associated with this view and the relationship between a color-blind society and affirmative action.

Cose explores the discourse on race in South Africa, Brazil, and Puerto Rico. He then compares the experiences and approaches to the race problem of the countries with those of the United States. Cose shows that even in those countries in which it is claimed race does not matter, race nonetheless manages to play an important role in how individuals are treated and greatly impacts their life chances. He notes, “Even before the civil rights movement erupted and Jim Crow died, racial definitions in the United States were somewhat different from those in South Africa (and Latin America), and specific policies varied as well.” This is an important point which Cose pursues throughout Color-Blind. Race is viewed in very different ways depending on the weight a particular society places on it.

Cose’s book is compelling by his insertion of discussions with individuals from Puerto Rico, South Africa, and Brazil, on topics relevant to an in-depth comparative analysis to the race problem in the United States. The discussions on race and color-blindness in these countries show the complexity of race in various parts of the world. Cose goes on to explore the multiracial debate and its significance to the United States. He then moves on to discuss the fascination Americans have with debates on genetics and intelligence. Next, he addresses education and affirmative action and the debate on the future of affirmative action. He ends with discussions on color blindness, and finally, race neutrality.

Color-Blind‘s discussion of multiracialism is an interesting one. Cose employs interviews with multiracialists in the United States and South Africa to show that while the debate may have valid meaning given the racial history of the United States, the same debate is the source of conflict in South Africa. In the United States, there is a desire on the part of multiracial individuals to show their support for a category which defines them as a separate group. In the United States, the multiracial movement is struggling for acknowledgment of individuals of multiple races and ethnicities. Proponents of the multiracial category feel they do not neatly fit into the race and ethnicity categories as they presently appear on the census forms.

In South Africa, however, attempts to maintain a distinction between blacks and coloreds has resulted in continued distrust and conflict. This seems to have its basis in the tense race situation between Coloreds, Indians, Black South Africans, and White South Africans prior to the dismantling of the apartheid system. The attempt to distinguish between individuals who are colored and black in South Africa has also been perceived by some observers as a way to continue polarizing an already bifurcated society. One interesting similarity exists between South African and the U.S. with regard to the multiracial racial designation. Individuals, whether proclaiming to be colored in South African or multiracial in the United States, are mistrusted by Blacks in both countries.

Cose shows the complications involved in the debate surrounding the multiracial category. Even among advocates and opponents of a multiracial category, the rationale for their positions may be quite varied. Additionally, the debate continues to take on different meanings depending on where the debate takes place.

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Page 30

One of the other issues Cose briefly touches upon is genetics and intelligence. In particular, he takes to task journalists who gave merit and credit to Herrnstein and Murray’s, The Bell Curve. The tiresome debate surrounding the degree of intelligence displayed by individuals of different racial groups continues, but for what reason? Cose opines the belief that these debates serve no real purpose but are ever present because there is an agenda. This agenda comes in the form of psuedo-scientists who want to prove that equality can never be achieved by some groups because they are simply unfit based on their gene pool. Cose argues that if we, as a society, believe the rhetoric spewed by psuedo-scientists, we too can simply throw up our hands and accept inequality as a given; simply the result of genetic inadequacies, rather than finding ways to make society more equal by making its people successful.

This debate is closely linked with a lengthy discussion engaged in by Cose, that of education and affirmative action. Cose asks, “How do we achieve educational parity?” Cose posits early action to ensure equal education and to prepare minority children for the college experience. He suggests that we spend more time working to level the playing field by using a variety of different college preparation programs in high school as well as those programs which have been shown to be successful at several colleges and universities. According to Cose, we need to teach minority children to strive, rather than settle, when it comes to their education. He further suggests we teach minority students the value of an education and encourage them early and continuously.

In discussing education and the debate on affirmative action, Cose gives a thorough overview of important cases and evens from Bakke to Hopwood. He examines the desire by some to continue basing affirmative action on a group’s disadvantaged status and the desire by others to include class so that those individuals who may not be historically disadvantaged may benefit from affirmative action. Cose then discusses yet another option–the possible dismantling of affirmative action in college admissions altogether. He points out the risks that may occur, namely, the notion that color-blindness will make affirmative action unnecessary, and thus its use in college admissions will become a moot point. He also notes the risk inherent in throwing out the old without truly understanding that what may take its place could be worse.

The link between color and class is also discussed, especially in the book’s early chapters. Cose brings into the scope of the discussion William Julius Wilson’s work on race and class as it pertains to African Americans in the contemporary era. The salient issue of colorism in Latin America is discussed quite well in Chapter 7. In this chapter, claims of color-blindness are well scrutinized and challenged. This is an especially relevant issue given recent accusations of racism alleged in some Latin American commercials and advertisements viewed by satellite in the New York City area. Some individuals claim there is no race problem in Latin America because they say Latin Americans do not see race in the same way as individuals in the United States. An individual in blackface, with thick lips, and a propensity to pick pockets may be viewed by some Latin Americans as simply a part of the comic scene. For Cose, however, the reality is a society which wants to ignore its divisions based on color and class.

In the last chapter, Cose outlines the twelve necessary steps to move us toward “racial sanity” in the United States. Some of these steps appear relatively simple, while others require a concerted group effort. “We must stop expecting time to solve the problem for us,” Cose writes. He appears to be directly addressing those who feel that the problems associated with a race-obsessed society will simply disappear if we stop talking about it and if we rid ourselves of affirmative action programs and policies. Unfortunately, the chapter’s twelve steps are rather unbalanced in accordance with the rest of the book. The steps, while admirable, read like a “To Do” list on race relations. This, unfortunately, is what many readers may focus upon, rather than the more important weightier issues discussed in the earlier chapters. It is perhaps because of their simplicity that the complexity of dealing with race matters may appear trivial.

Cose’s use of interviews, discussions of early court cases, and his attack on the narrow views of individuals who posit a color-blind philosophy in the U.S. is quite an undertaking. The early chapters in the book are especially interesting and provide a rich source information for anyone struggling to make headway in the debate on color-blindness. The book presents a compelling analysis of race and color-blindness, offering an in-depth discussion of the intricacies involved when we speak of a color-blind society. It also provides astute answers to some very important questions. Color-Blind is an important source at which to either begin or continue to engage in a fruitful dialogue on matters which may be uncomfortable to talk about, but which, nonetheless, deserve out attention.

Shirley A. Jackson is a professor in the Department of Ethnic Studies at Bowling Green State University in Ohio.