The Last Throes of Affirmative Action?

Affirmative action.  Those two words together occupy a special, albeit a controversial place in the annals of American history.  Although it is one of the many symptoms of slavery in America, I believe that it also shares a unique and not oft-discussed element with slavery that resides in the US Constitution.  Article 1, section 9 of the US Constitution was the only “mention” of slaves prior to the passage of the 13th Amendment and it states that “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”  A quick brush-up on your American history will show you that the nation (on the whole) had been wrangling with what to do with the institution of slavery (as early as 1789) and many thought that it would eventually “cease to exist” at some point that was yet to be determined.  The clause in Article 1, section 9 shows that it was to be allowed (or not restricted by Congress) until at least 1808.  Yes the year 1808!  As history shows, it did not decline as originally thought (and perhaps hoped) but actually grew and spread to newly acquired areas…So even back then, the government was known to kick the proverbial can down the road in hopes that it takes care of itself.  The statistics will show that more often than not, the problem that was deferred actually intensifies and acquires new complexities that the people who deferred it did not anticipate.

Now, let us get back to affirmative action.  The origin of its usage is a bit murky but legally, President Kennedy is given credit for being the 1st to usher in the wording that we use today through his enactment of Executive Order 10925.  This Executive Order mandated that projects financed with federal funds “take affirmative action” to ensure that hiring and employment practices are free of racial bias.  Title VII of the Civil Rights Act of 1964 built upon those established principles and subsequent Executive Orders by President Johnson (Executive Order 11246 and Executive Order 11375 respectively), and Executive Order Number 11625 by President Nixon (to name a few) helped to legitimize this practice.  Just as education was a key battleground in the fight for civil rights with Brown v. Board of Education, education was also a key point in the fight for affirmative action with the Regents of Univ. of California v. Bakke case of 1978 (265) which upheld affirmative action but rejected the quota system utilized by the school.  More recent cases involving higher education have found their way to the Supreme Court such as the Grutter v. Bollinger case of 2003 539 U.S. 306 which upheld the affirmative action policy at the University of Michigan Law school.  It is noteworthy to mention that in the majority opinion of the case, the Court believed that the affirmative action measures used at the school would be unnecessary in 25 years as the need for them would dissipate…(based on what evidence exactly???)  The Gratz v. Bollinger case of 2003 539 U.S. 244 involved the University of Michigan’s undergraduate admission system which centered around a point system for all applicants but additional points were given to applicants who would help the diversity element at the school.  In this case, the Court deemed this admission policy unconstitutional, along the lines of the verdict in the Baake case of 1978 which rejected quota systems.  As a result of the fallout from the two Michigan cases that came before the Supreme Court, the state of Michigan eventually passed an amendment to its Constitution in 2006 called Proposal 2, banning the use of race in its public school admissions process.

As one can imagine, the passage of Proposal 2 ignited a firestorm from many parties who viewed it as an attack on the institution of affirmative action.  Critics of the newly minted state law feared that it was the beginning of a slippery slope; beginning in education and then migrating to other areas of society such as employment.  Several legal challenges were mounted as to the whether it was unconstitutional for the state of Michigan to ban an element of affirmative action; the most noteworthy of them is the Schuette v. Coalition to Defend Affirmative Action case which was just decided on April 22, 2014.  In the holding, the Supreme Court ruled that the state of Michigan excluding race from the admission process in its public schools and universities was not a violation of the Equal Protection Clause of the US Constitution and would not be struck down.  Civil liberties groups nationwide were in an uproar over this landmark decision.  This ruling built upon the ruling of the Gratz v. Bollinger case of 2003 and charted new territory by validating the state’s ban on THE key element of affirmative action, the consideration of race.  California had enacted a similar statute back in 1996 called the California Civil Rights Initiative or Proposition 209 and the state of Washington has a similar law called Initiative 200 that was passed in 1998.  There will no doubt be other states that will follow suit especially with how decisive the vote was in the Schuette v. Coalition to Defend Affirmative Action ruling (the Court ruled 6-2, with 1 justice abstaining).

So, where do we go from here?  I began this piece by showing how slavery was deferred or “kicked down the road” with people believing that it would die out on its own accord.  Affirmative action is a direct result of the transition from emancipation to integration and it is still under construction.  Unlike slavery which was primarily a singular institution and could be regulated by legislation (the 13th Amendment), affirmative action has its own complexities.  It relies on legislation but also intangibles such as ethics, morals and the like that are not easily monitored, quantified or punishable.  One of the main issues that has been highlighted by the recent court cases is that as much as some people tout the “post-racial” society that America is becoming, the stark reality is that race is occupies an integral position in the fabric of this nation.  If affirmative action is a barometer of how far America has come from the struggle for integration and the Civil Rights clashes of the 1960’s for example, the results would be mixed.  Race casts a large shadow in this nation and that is the central concept of affirmative action.  If we lived in a truly merit-based society where an individual was evaluated on their credentials and merits alone, there would be little need for it.  Sadly, this is not the case and I would agree with Justices Ginsburg and Breyer who did not share the Court’s belief (in the Grutter v. Bollinger case) that the affirmative measures being used at the school would be unnecessary in 25 years.  If the Court deferred or kicked the affirmative action “can” down the road without eroding the protection offered to those who benefit from it, that scenario may be tolerable.  Not because it is an admission that conditions have not improved to the point that they are no longer needed, but that a realistic view of the social climate of where the nation is currently at is more pragmatic at the moment.  Instead, those protections offered are gradually being removed under the pretense that social conditions are suitable to allow equal opportunity to exist without legal fortifications.  This reasoning is more in line with many who see the social conditions in America as they WISH or BELIEVE it will be and not as it ACTUALLY is. Furthermore, I am of the belief that it (affirmative action) can and has had some unintended consequences, which led to the Gratz v. Bollinger case.  By instituting a points system to promote diversity, the university excluded qualified candidates which probably would otherwise have been admitted to the school.  The points system would have worked perfectly (without adverse effects to diversity or white candidates) if the size of the admitted class was infinite but unfortunately, there are limited seats.  The good deed achieved the goal of promoting diversity at the school but by excluding a qualified candidate, it sowed the seeds to add or promote more racially based rancor, and resentment, which are at the core of affirmative action.  At the present moment, affirmative action (its successes and shortcomings) are pieces of a vicious cycle with seemingly no end in sight.

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