Race Reflection 2: Affirmative Action & The Supreme Court
As multiple opinions in Adarand Contructors v. Pena (US S. Ct., 1995) show, there are many ways to interpret the Equal Protection Clause of the 14th/5th Amendment in relation to racial affirmative action. The majority recognizes that remedial measures taken to right past discrimination are a compelling governmental interest but must be narrowly tailored to correct specific wrongs and to benefit specific people affected by those wrongs. The problem with this interpretation is the difficulty in developing affirmative action remedies which can pass strict scrutiny. While the majority wishes to dispel the notion that strict scrutiny is “strict in theory, but fatal in fact,” it does little to explain how a remedy can be narrowly tailored to address the enormous impacts of racial discrimination, a problem that is spread as wide as the country.
It is well recognized that minorities, and particularly African Americans, experienced great discrimination in our past. The Supreme Court in the past has upheld discrimination by citing the Constitution, including cases as recently as Plessy v. Ferguson. Although the court has abandoned such readings of the Constitution, it seems unjust that they again cite the Constitution to limit the remedies of their past mistakes. While the majority in Adarand recognized the “compelling interest” of remedial action, the concurrences are enlightening on the court’s reasoning for limiting the breadth of remedial affirmative action.
Scalia and Thomas adopt the notion that “the Constitution is color blind” and therefore any remedial action determined by race is per se invalid. Scalia refers to affirmative action as an impermissible creation of creditor and debtor races. Yet, how can it be ignored that mass fortunes and regional economies were built on the backs of black slaves for the benefit of white society. Whites continue to benefit from their past and present social privileges, even if they don’t wish to. Can it truly be Unconstitutional to recognize that the white majority has gained considerable social and economic advantages while placing minorities in great social and economic debt?
Thomas’s concurring opinion is particularly fascinating. Being the only justice to represent a minority race, his opinion carries considerable weight. Yet, it is safe to say that his opinion does not represent the opinion of the majority of this country’s African American population. He sees the creation of affirmative action programs as a system of racial paternalism. That is, in allowing affirmative action, the majority becomes a parent looking after the best interests of the minority child. In his view racial paternalism is a form of racial prejudice, in that it suggests that one race must work to protect an inferior race.
I can’t help but to view Thomas’s opinion as terribly flawed. Except for Native Americans, racial groups are not sovereign political bodies. Neither white’s nor blacks have the ability to act alone in determining the laws of the land and what remedial actions for past wrongs should be in place. Affirmative remedies for past discrimination are not developed solely by the majority race, but instead by the equal political cooperation of all races. Whites did not create affirmative action as a parent protecting a child. Affirmative action remedies are typically developed by multi-cultural legislative bodies. Affirmative remedial action is not a product of white guilt. It is a multi-racial recognition of current discriminatory impact on minorities. Minorities have made considerable gains in their long battle for political power. Now that their concerns are being addressed, it is fascinating that an African American justice would undermine their political achievements by implying that their gains are merely a product of majority racial discrimination. Views such as these divide the races into separate political bodies that perpetuate social racial divisions. Affirmative action can not be dismissed as the political creation of the majority, but must be recognized as a multi-racially developed remedy addressing the concerns and needs of the majority and minorities alike.
“Affirmative remedies for past discrimination are not developed solely by the majority race, but instead by the equal political cooperation of all races.”
If governing bodies whose members are mostly white, elected by a citizenry of mostly white people, developed said remedies, this is not an example (racially) equal cooperation, even if members of minority groups had a hand in the process.
Sorry if this comment seems curt – I don’t mean it that way. I’m hurrying to type it as my lunch break is ending.
One factual error in your post: you state that Justice Thomas is “the only justice to represent a minority race.” In actuality, Justice Ginsberg does also and dissented in this case.
“Views such as these divide the races into separate political bodies that perpetuate social racial divisions.”
However well-intentioned, affirmative action is the DEFINITION of “perpetuat(ing) social racial divisions”.
Tony: Even when an affirmative action remedy is created by a majority white governing body, do you think that they’ve come up with the idea on their own? Do you think that they are (un)consciously attempting to engage in an act of paternalism for their minority children? No…affirmative action is not a majority construction. It has been created out of years of political work from minority advocates, even if minorities policymakers aren’t in control of the affirmative action car, they are providing the fuel (ummm…so to speak).
Siafa: Are Jewish Americans a minority race? Or are they more properly considered a minority ethnic group/religion? That is an interesting debate…
You obviously have a better knowledge of the history of affirmative action laws and who was involved in that process, so I will concede that point to you. However, I am sure that certain white legislators took the ball and ran with it from time to time as well – this would have to be the case in a legislative body with a continuous white majority. ALL of the credit can’t be given to minority lawmakers and advocates.
But what about the fact that, regardless of who is responsible, it not inaccurate to call affirmative action a form of “paternalism”. I think Thomas is well aware of who was instrumental in the whole thing, but his point lies elsewhere. Take this, for example:
“Do you think that they are (un)consciously attempting to engage in an act of paternalism for their minority children? No…affirmative action is not a majority construction.”
Here, you yourself are referring to affirmative action as “an act of paternalism”. Does it really even matter who is responsible, if it is a majority or minority construction, or both?? I don’t know, but Thomas’ opinion doesn’t hinge on that detail.
Good article.
Taking aside your major points I just wanted to point out that a lot of individuals opposed to affirmative action, applied to employment and educational application based on race, have no problem with these same practices applied to high school sports, farm subsides, and/or ADA access. These laws protect, or forcibly apply, equality to a sect of society and not the whole.
In other words if a judge is supporting one form of affirmative action and not the other based strictly on the constitution I begin to question not only their accurate assessment of the constitution but also their personal ethics.
Tony: Your point is well taken that whites are still in control of the decision making process. This is unfortunetly a sign that in a many ways races are in actual practice quasi-independent political bodies…even though I claim that their is no justification to recognize them as such.
But for the sake of this arguement I have seperated them into different political bodies, although not independant…
I guess my main point is: How can it be paternalism if the “parents” are enforcing the rules that the “children” make?
Because the “children” are asking the “parents” to take care of them. In principle, I can understand why a minority would take offense to such a concept. You summarized Thomas’ opinion by saying:
“In his view racial paternalism is a form of racial prejudice, in that it suggests that one race must work to protect an inferior race.”
In essence this suggestion is right on the money, and I think that it is believed by some that minorities are weakened, not strengthened, by affirmative action. Would you feel more empowered if you knew you had earned a job solely based on merit than if you were “given” a job based only on the color of your skin at the expense of a slightly more qualified differently-pigmented applicant? Knowing you’re not the best man for the job would have to eat away at you and ultimately make you feel insecure. Conversely, overcoming obstacles that that other applicant never had to deal with and winning that job simply because you’re the best man for it would make someone feel doubly confident and proud, and rightly so. I believe that must be where Thomas is coming from.
And what if you don’t get that job because of the color of your skin, in spite of the fact that you are more highly qualified?? Find a company that doesn’t discriminate based on race. Why would you want to work for a boss that has to be FORCED to accept you? Would you want your employers to view you as the “token black-guy” that they had to hire to keep the government off their backs? Is it worth devoting yourself to the betterment of a company that would otherwise discriminate against you if it weren’t against the rules?
I realize this is a somewhat simplistic take on things, but maybe it helps to explain the validity of the racial paternalism angle.
I was thinking about this discussion last night and came up with a few scenarios. This is a bit of a departure from the topic, but if anyone has a response, I’d like to hear it.
Here are some examples of how affirative action could cause injustices in the hiring process. They would also apply to the college admissions process.
1) A qualified white applicant raised in poverty is passed over in favor of a less-qualified minority applicant raised in an affluent household.
2) A qualified white applicant raised in poverty is passed over in favor of a qualified minority applicant raised in poverty – both had to overcome similar obstacles and the white applicant did not in any tangible way benefit from the the injustices inflicted against minorities in the past.
3) A wealthy Nigerian immigrant is offered a position over a similarly qualified white applicant. What’s more, the Nigerian’s ancestors built a forture from their involvement in the trade of African slaves.
And what about people of mixed-race? If I am 25% or 50% black, do I deserve special consideration? What if I discover that I had a black ancestor 100 years ago – how many “bonus points” does that earn me? If the answer is none, why? Finally, does every ethnic or racial group deserve reparations for historical injustices? If not, why?
Meanwhile, Clarence Thomas’ opinion indicates that, despite the supposed benefits that affirmative action offers to minorities, these benefits are not always wanted by those who stand to gain from them. I can recall that when the Detroit Lions were set to hire Steve Mariucci as head coach, Matt Millen, the team’s general manager, publicly stated the Mariucci was his first choice for the position. This was before Mariucci had officially been hired. Millen hired him and was fined $200,000 for not interviewing a minority candidate as the NFL had dictated must be done whenever a team was searching for a head coach. There was a black candidate who was asked to come in for an interview, but he refused because he knew the interview would be a sham – he was too proud to be the “token black-guy” that the Lions were going to use to keep the powers-that-be satisfied.
Anyway, these are just some of the results of my brainstorming session. Feel free to comment or criticize.
1) Affirmative Action isn’t simply used because of wealth and/or class. It’s also used as a means to promote cultural diversity.
2) Both have overcome SOME similar obstacles but I think you may be assuming being black in this country and being white in this country start you off on the same footing. Culturally an African American endures far more discrimination and physical/emotional hurdles than a white American.
3) Again we’re back to “diversity trumps.” The college experience wouldn’t be what it is today without diversity. Had you not went to college at WSU and merely attended university that was just an extension of De La Salle would you have gotten as much from your experience?
A lot of your points only stand ground if the treatment from the majority was equal toward itself as toward the minority. It isn’t. Not to mention you’d also have to assume that culturally each of these races is a homogenous pile of goop. They’re not. Each race has its nuances and uniqueness within its culture, to cast that aside on just the basis of wealth is missing the point.
The majority can benefit from the minority because it can change their point of view. The deeper an individual resides in a culture separate from the majority the more chance that individual can have that affect.
1) Yes, but is it RIGHT to do so? Since when is diversity the most important thing? You could make an argument to that effect, but it would be very debatable. In this particular case the deserving applicant gets screwed. How is that just?
2) Fine. But when the playing field is level, will affirmative action based on race be discontinued? Who decides when society has reached that point?
3) Again, why does diversity trump merit? My college experience was not significantly improved by the diversity that exists at WSU.
“A lot of your points only stand ground if the treatment from the majority was equal toward itself as toward the minority. It isn’t.”
Yes, racism exists. But two wrongs don’t make a right. Just because minorities sometimes get the shaft does mean we should have a policy of intentionally doing the same thing to non-minorities.
“Each race has its nuances and uniqueness within its culture…”
Actually, my examples illustrate some of the nuances you speak of. That’s precisely why we should not make rules based on race. Nor should we assume that a person is going to have a positive impact on a school or company just because they are in the minority. Is that assumption the basis for the diversity argument?
The basis of my diversity argument is this.
A few days ago I was listening to NPR and heard a report about heavy Hispanic immigration drastically increasing the unemployment rate in some small town in the southeast. The town residents were so consumed with how a bunch of out-of-work men hanging out in front of a local convenience store looked that they completely ignored these individuals’ rights as humans. One audacious woman stood in front of the town council and said, “Your in America now, learn how to speak the language!”
That’s what lack of diversity does.
If the hands of majority weren’t forced along would the integration of schools have taken place? Hell, right now we have a clear discrimination of gay people justified by law! Obviously the majority can’t be trusted with its power.
I believe it will. And I believe it will be so obvious at that point we won’t have to worry about “who decides.”
When the educational system is equal in urban, suburban, and rural districts we’ll know that we’ve gotten closer. When blacks, Hispanics, Asians, and whites can inter-marry without ANY societal repercussions we’ll know we’ve gotten closer.
How do you know that for sure? That’s quite a statement to make… Think about your professors, faculty members, and fellow student opinions? I would never make a statement like that and I’m not sure how you can.
This sentence means nothing to me. Your opinion is that affirmative action is wrong, not mine.
“Your opinion is that affirmative action is wrong, not mine.”
So if you think AA is right, then you believe that my example #3 listed above is as well. How can you even attempt to defend the scenario I laid out as being just? Face it, there’s a really good chance that affirmative action sometimes results in injustice.
“I believe it will. And I believe it will be so obvious at that point we won’t have to worry about “who decides.” “
Sounds good, but unfortunately, because of the laws that have been written, someone is going to have to decide.
“The basis of my diversity argument is this.
A few days ago I was listening to NPR and heard a report about heavy Hispanic immigration drastically increasing the unemployment rate in some small town in the southeast. The town residents were so consumed with how a bunch of out-of-work men hanging out in front of a local convenience store looked that they completely ignored these individuals’ rights as humans. One audacious woman stood in front of the town council and said, “Your in America now, learn how to speak the language!”
That’s what lack of diversity does.”
This anecdote has nothing to do with racism and everything to do with xenophobia. EVERY non-English speaking immigrant has been told the exact same thing, including the European ones. Ask the Italians, Germans, Poles, Lithuanians, etc. And the bottom line is that they did assimilate themselves into American culture. In no way does this story justify affirmative action.
And I will stand by my statement regarding my college experience, which was largely negative. I should have quit in my first semester. But that’s a discussion that doesn’t need to happen in this forum. :)
No time to completely comment but:
Wikipedia.org
If it had said “xenophobia in general is sometimes described as a form of racism”, you might have something. But it says the opposite. I had to read it twice myself.
I do have something. This IS one of those times. Are you really trying to argue that the woman in the story is NOT being racist!? Give me a break!
I understand that the sentence I picked from the article isn’t necessary discriminating based soley on race (rather language) but come on! The woman is a racist.. It’s obvious.. The form of xenophobia she is expressing is based more around culture and race than language. I used that specific comment as “icing on the cake.” The rest of her comments might have painted a clearer picture. She said pretty derogatory remarks with nothing but ethnicity as her basis.
Funny, I see a lot of Italian restaurants around me? Did they assimilate into American culture, or did the culture change because of their influx?
Modern America doesn’t have a culture like Europe. Immigrants created and continue to create what we call a culture. And because of the general xenophobia of the nation it takes laws like affirmative action to force those same immigrants to allow that culture to further itself. The story IS an argument for affirmative action, because without it far less progress would have been made in the successful integration of ALL cultures within America.
NOTHING in your original account of the NPR piece proves that she is a racist. If she went on to make racist comments, fine, but I didn’t have that knowledge. And, yeah, her attitude might suck (along with the attitudes of many others), but does that prove that diversity should trump merit? I would say it doesn’t.
“Did they assimilate into American culture, or did the culture change because of their influx?”
They assimilated, otherwise we’d be speaking Italian or some pidgin English-Italian language. One can assimilate and still retain aspects of his heritage – food, dress, certain customs, certain words, and so on. Assimilation does not mean becoming exactly like the citizens of the country to which you have relocated. And the Italians you’re referring to did it all without the help of affirmative action laws.
You’re acting like I wrote some diatribe about this woman. It was one sentence! I could argue that NOTHING in my original account proved that she wasn’t a racist as well, but that gets us nowhere. Hear no evil, see no evil, speak no evil, right?
You know why? It’s because they were white. That makes it a hell-of-a-lot easier.
So language is the crutch of assimilation? If in some hypothetical scenario a surge of immigrants changed everything about their host countries culture except the language these immigrants have assimilated?
Wikipedia:
This conversation has gotten (per usual) too convoluted. Briefly, here are my thoughts on why affirmative action should stand. Minorities are affected by the law far more than the majority white race. Especially minorities with long histories of horrible discrimination, mainly blacks, because they can’t change the color of there skin, therefore they stand apart from the majority. Being that affirmative action affects blacks more than whites then I am pressed to side with the majority of the minority. Basically if more minorities feel it should stand than do not, then let it stand. I can’t live in their shoes to see exactly what their situation is, so I’m going to have to take their word for it.
When I hear accounts of a white applicant being passed in favor of a black applicant (with arguably less merit) I laugh. For one, a measure of merit based solely on scholastic achievement is a joke. For two, getting turned down from your choice college is not the end of the world. It’s time to grow up; the world isn’t always the way you want it to be.
“I could argue that NOTHING in my original account proved that she wasn’t a racist as well…”
Generally speaking, if I’m going to respond to something someone else has written, I’m going to respond to what is actually on the screen, not what that person might have intended to convey. That’s all I did.
Don’t underestimate the importance of language as a unifying factor. To respond to your hypothetical situation, that would be more like an invasion than an theoretical extrapolation of normal immigration patterns. It’s too extreme to apply to this discussion about the assimilation of immigrants.
“You know why? It’s because they were white. That makes it a hell-of-a-lot easier.”
As valid as this may be, it’s the exact reason why someone like Clarence Thomas would oppose affirmative action. And it reinforces the racial paternalism argument by insinuating that minorities need help from the majority because it’s too hard to make it without that help. All I’m saying is that you have to grant the due respect that this opposing viewpoint commands, especially when it’s coming from a successful member of a minority race.
“This presumes a loss of all characteristics which make the newcomers different.”
It is impossible for one to lose ALL of the characteristics that make them different from others. If it were possible, why wouldn’t all the people of the world just assimilate to one another and live in harmony?
My conclusion would be to say that I am not insensitive to the genuine plight of minorities in America. However, I do not find it laughable when injustices are written into law, regardless of who is on the losing end of the deal. That’s not progress because it perpetuates racial conflict. If a white admissions officer said this to a black applicant – “Getting turned down from your choice college is not the end of the world. It’s time to grow up; the world isn’t always the way you want it to be.” – you would be up in arms. So why is it ok for that to be said to a white applicant?
P.S. The aforementioned applicant is getting turned down as a result of racial discrimination, by the way.
What about Female sports?
Because this nation is not and never was color-blind. The privileged class must make amends when their likeness freely discriminates the minority. Until racism is eradicated, and the meaning of being black doesn’t associate poverty, there will be a need to accommodate our majority ignorance, thereby creating law.
If you’re asking if I am in favor of Title IX, the answer is yes. What the article describes is, in my estimation, a step in the wrong direction.
If you’re implying that it is contradictory to be in favor of Title IX, yet oppose some applications of affirmative action, I would disagree with you. The former involves sex and promotes equality, the latter involves race and promotes discrimination.
Your last paragraph makes it apparent that you feel the best way to combat discrimination and eradicate racism is with more discrimination. I guess we’ll have to agree to disagree on that point.
Back to the main point. That of Thomas’ paternalism argument.
I feel one could reverse this logic and state something like:
It’s too hard to prevent racial discrimination from the majority. Especially with the current climate of a near white artistocracy dominating politics, business, and resources. Therefore blanketing minorities with slight advantages can offset potential (and sometimes obvious) disadvantages the majority can/will/does against them.
Only if minority and majority were already equal.
What if, because of Title IX, a school had to cancel some boys teams in order to raise the funds for girls teams? Therefore by your logic, Title IX would involve sex and promote discrimination.
1998 NCAA TITLE IX SEMINAR VIOLATES PROPORTIONALITY
Like I said, it’s a matter of opinion at this point. Some, including yourself, believe that establishing policies of inequality is the way to ultimately achieve racial equality. Others, like me, believe that policies of equality are the proper route. Tell you what – if and when racial harmony is a reality, you and I will look back at how it was accomplished and decide who was right.
Re: the Title IX thing, you’re glossing over a crucial point – Title IX affects all races equally, thus it does not promote racial inequality in any way, while promoting equal opportunity between the sexes.
“The former involves sex and promotes equality, the latter involves race and promotes discrimination.”
I apologize for not being explicit enough. Allow me to revise this to read:
The former involves sex and promotes gender equality, the latter involves race and promotes racial discrimination.
If a university student body contains a 50% male, 50% female mix and that university’s sport was 80% male, 20% female Title IX goes into effect. And you agree with it.
If an auto factory is located in a city with a 50% white, 50% black population and that factories labor force is 80% white, 20% black affirmative action goes into effect. And you disagree with it.
Affirmative action is a form of reversing racial discrimination, not promoting it.
Wikipedia.org
The Wikipedia entry contains interesting and compelling arguments supporting both sides of the debate. I won’t bother to copy and paste any of them, as I assume you’ve read the entire entry.
Yeah, it kinda made this discussion look like a waste of time.
On the plus side (or negative, depending on how you look at it) this was the longest discussion ever on the site.
Well, as is usually the case with our extended discussions, I feel like I learned a few things.
Wow 30 comments! One day I will have time to read them all and respond. Check back in a few weeks.