Race, Affirmative Action, and the Law

by Randall Kennedy

  “Racial affirmative action is the race-conscious allocation of resources … that is motivated by an intent to benefit racial minorities.” Girardeau A. Spann, The Law of Affirmative Action (2000), 3.

  “[Affirmative action] seeks to remedy the significant underrepresentation of members of certain racial, ethnic or other groups through measures that take group membership or identity into account.” Paul Brest and Miranda Oshige, “Affirmative Action for Whom?” Stanford Law Review 47 (1994): 855–56.

  Affirmative action is “a program in which people who control access to important social resources offer preferential access to those resources for particular groups that they think deserve special treatment.” Peter Schuck, Diversity in America: Keeping Government at a Safe Distance (2003), 136.

  “ ‘Affirmative action’ is a phrase that refers to attempts to bring members of underrepresented groups, usually groups that have suffered discrimination, into a higher degree of participation in some beneficial program.” Kent Greenawalt, Discrimination and Reverse Discrimination (1983), 17.

  “Affirmative action [programs are those in which] members of minority groups receive a preference in the award of jobs, admissions to selective colleges and universities, or government contracts.” Richard H. Fallon, Jr., The Dynamic Constitution: An Introduction to American Constitutional Law (2004), 124.

  1.

  Affirmative Action in the History of American Race Relations

  FEDERAL CIVIL RIGHTS AS “DISCRIMINATION” AGAINST WHITES: RECONSTRUCTION

  Every major step toward undoing racial oppression in America has been met with the charge that it constitutes reverse discrimination against whites and unfair preference for people of color. Consider America’s first federal civil rights law. The Civil Rights Act of 1866 declared all persons born in the United States citizens. It also clothed all persons with the same rights as whites for purposes of suing or being sued, contracting, owning property, or serving as witnesses. Prior to this legislation, the Supreme Court, pursuant to the notorious Dred Scott decision, had ruled that blacks, whether free or enslaved, were not citizens of the United States. The federal government and many states, moreover, had openly barred blacks and other racial minorities from exercising even the most elementary civil rights.1

  President Abraham Lincoln’s successor, President Andrew Johnson, vetoed the Civil Rights Act, charging that it represented “special legislation.”2 He disliked the citizenship provision, because it would immediately make citizens of native-born blacks while European-born immigrants had to wait several years in order to qualify for citizenship via naturalization. According to Johnson, this “propose[d] a discrimination against large numbers of intelligent, worthy and patriotic foreigners and in favor of the negro.” Johnson similarly disliked the provision that authorized federal judicial enforcement of rights that, for some purposes (contracting, owning property, suing, and testifying), placed blacks on the same plane as whites.a This part of the bill, Johnson complained, affords “discriminatory protection to colored persons.” According to Johnson, these arrangements “establish[ed] for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race.”

  The Civil Rights Act and Johnson’s veto (which was eventually overridden) highlight two important points. One has to do with overlooked complexities regarding what counts as “race-sensitive” as opposed to “race-blind” policy. Johnson characterized the Act of 1866 as illicitly race-sensitive insofar as it contained, in his view, a “distinction of race … made to operate in favor of the colored and against the white race.” Was this charge racial demagoguery? Partly. The act did simply stipulate that, with respect to the activities named, parties shall merely have the same rights “as [are] enjoyed by white citizens.” On the other hand, Johnson was correct in observing that this exertion of federal power was unprecedented and that the dominant purpose behind it was to elevate the legal status of African Americans. Many observers today consider the Act of 1866 to be “race blind.” But textually, the act is explicitly attentive to race, and its framers were moved primarily by a desire to help a particular sector of the populace: colored Americans. The Act of 1866 can thus be seen as a race-sensitive precursor of “affirmative action.”3

  A second point accentuated by the Act of 1866 and Johnson’s veto of it is the alacrity with which many have deployed the rhetoric of “reverse discrimination” in attacking reforms that diminish white privilege.b Those who sought to abolish slavery, a Florida slaveholder fumed, were determined to “give the ‘nigger’ more privileges than the white man.”c 4 With the abolition of slavery only a year old, President Johnson was already claiming that blacks (and their allies) were seeking racial favoritism. In 1874, disapproving of federal legislation prohibiting racial discrimination in the provision of public accommodations, the Chicago Tribune asked (in an editorial entitled “The Nigger School?”), “[i]s it not time for the colored race to stop playing baby?”5 In 1883, in the course of invalidating parts of that same legislation, the Supreme Court accused blacks of seeking preferential treatment by demanding the end of caste-like exclusions. Impatiently lecturing the black plaintiffs in The Civil Rights Cases, the Court declared that “when a man has emerged from slavery … there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws.”6

  Despite opposition, reformers in the Reconstruction Era followed new statutory law with constitutional provisions that elevated the status of colored people. Most pertinent to our concerns, the Fourteenth Amendment directed the states to provide to all persons “the equal protection of the law.” A proposed version of the amendment directed public authorities to disregard altogether the race of individuals. Authored by the great slavery abolitionist Wendell Phillips, this version declared, “No State shall make any distinction in civil rights and privileges … on account of race, color or descent.”7 But the framers of the Fourteenth Amendment eschewed that rule in favor of the open-textured standard that won ratification.

  Andrew Johnson opposed the Fourteenth Amendment, claiming that it, like the Civil Rights Act, was part of a series of steps being taken on behalf of the Negro that had never been taken on behalf of any other group. Johnson’s description was partially correct. After all, as Professor Arval Morris notes, the Fourteenth Amendment can rightly be considered “a type of affirmative action by the nation.”8 Moreover, additional legislation enacted by framers of the Fourteenth Amendment expressly singled out blacks for benefits. In July 1866, the same Congress that sent the Fourteenth Amendment to the states for ratification enacted legislation appropriating funds for “the relief of destitute colored women and children,” confirmed land sales limited to “heads of families of the African race,” and donated property in Washington, D.C., for schools “for colored children.” The next year, the Congress appropriated money for the relief of destitute “colored” persons in Washington, D.C. On other occasions during this period, Congress made special awards to the “colored” soldiers and sailors of the Union army and navy.9

  This history poses a problem for constitutional “originalists” who also champion the idea of the color-blind Constitution. Overwhelming evidence indicates that the framers of the Fourteenth Amendment did not intend to create a color-blind Constitution. I am not saying that an answer to the historical inquiry should determine the matter. Nor am I saying that the results of historical analysis are altogether clear; the laws noted above applied to the federal government, while the pertinent provision of the Fourteenth Amendment applies expressly only to the states.10 I am not an originalist. I do not believe that the views, including the woeful prejudices, of eighteenth- and nineteenth-century statesmen should shackle us today. Just as there is evidence that the framers and ratifiers of the Fourteenth Amendment saw
it as no bar to legislation that offered benefits on the basis of racial identities, so, too, is there evidence that many of the framers and ratifiers of the Fourteenth Amendment saw it as no bar to segregation, particularly antimiscegenation statutes.d 11 My point is simply that the issue of positive and negative racial selectivity did arise during the time of the framing of the Fourteenth Amendment and that the response of many of its framers is at variance with the color-blindness mantra of certain so-called originalists.

  ANTIDISCRIMINATION LAW AS RACIAL FAVORITISM: THE 1940s

  A second important phase in the historical groundwork of affirmative action arose in the 1940s with the emergence of debates over whether and how government, at either the state or federal level, should prohibit racial discrimination in employment. In 1941, President Franklin D. Roosevelt promulgated Executive Order 8802, which prohibited racial discrimination in the employment of workers in defense industries, and he established the Fair Employment Practices Commission (FEPC) to implement the order. In 1945, with the Ives-Quinn Act, New York passed the first state law banning racial discrimination in employment. These reforms and kindred proposals were repeatedly opposed on the grounds that they would lead to “quota hiring” of Negroes. Assailing the FEPC, segregationist representative Jamie L. Whitten, a Mississippi Democrat, complained in 1944 that the aim of the committee was not to “prevent unfair discrimination against Negroes” but “to discriminate in favor of the Negro.”12

  This line of attack was by no means limited to Southern white supremacists. White racial conservatives up north put it to use as well. Inveighing against the Ives-Quinn legislation, New York City administrator Robert Moses spoke as if the proposed law portended more danger than the existing reality of racial exclusion:

  The most vicious feature of this proposal is that it will inevitably lead to the establishment of what in European universities and institutions … was known as the “numerous clauses,” that is, the quota system under which Jews and other minorities were permitted only up to a fixed number proportionate to their percentage of the total population.…It means the end of honest competition, and the death knell of selection and advancement on the basis of talent.13

  Amplifying Moses’s charge, the conservative columnist Westbrook Pegler complained that the Ives-Quinn bill “would emphasize origin, creed, color and race and result in the Hitlerian rule of quotas.”14 It is no wonder that in congressional testimony in 1945 on behalf of the NAACP, William Hastiee referred to “quotas” as “Specter No. 1” in the parade of horribles evoked by opponents of antidiscrimination legislation.15

  Hastie and many other supporters of antidiscrimination measures carefully eschewed demands and rhetoric that might give ammunition to adversaries.16

  Others insisted, however, that the only way of ensuring relief from discrimination was to demand tangible results—to require employers to hire Negroes in numbers proportionate to the black clientele of the business, or proportionate to the black population of the neighborhood in which the business was located, or proportionate to the population of available qualified Negro workers.17 Those in this camp also contended, after World War II, that when demobilization hit industries that had begun only belatedly to hire blacks, there should be racial exceptions to seniority rules to avoid a situation in which most or all of the new black hires, as junior employees, would face dismissal.18

  The most significant of the court cases prompted by “racial proportionalism”19 was Hughes v. Superior Court.20 In 1947, a group of black and white protesters in a predominantly African American neighborhood in Richmond, California, picketed a Lucky grocery store. They carried signs reading “Lucky Won’t Hire Negro Clerks in Proportion to Negro Trade—Don’t Patronize” and insisted that managers hire Negro clerks until their proportion of the workforce approximated the proportion of black patronage—about 50 percent. Lucky obtained an injunction against the picketing from a state court, but the picketing continued. The picketers were then held in contempt of court. The picketers maintained that their conduct was “speech” protected by the First Amendment. The resolution of the dispute turned on whether the purpose of the picketing was lawful. The California Supreme Court held that the purpose of the picketing was illegitimate, because the policy the protesters sought to institute would violate the state’s common law. According to the court, “If Lucky had yielded to the demands of [the picketers], its resultant hiring policy would have constituted, as to a proportion of its employees, the equivalent of both a closed shop and a closed union in favor of the Negro race.” If the picketers had been upheld in their demand, the court wrote with alarm, “then other races, white, yellow, brown and red, would have equal rights to demand discriminatory hiring on a racial basis.”21

  The United States Supreme Court affirmed the judgment of the California courts in an opinion by Justice Felix Frankfurter, which observed,

  To deny California the right to ban picketing [here] … would mean that there could be no prohibition on the pressure of picketing to secure proportional employment on ancestral grounds of Hungarians in Cleveland, of Germans in Milwaukee, of Portuguese in New Bedford, of Mexicans in San Antonio, of the numerous minority groups in New York, and so on through the whole gamut of racial and religious concentrations in various cities.22

  Professor Mark Tushnet observes that the arguments in Hughes “track virtually all of the arguments that have more recently been made in affirmative action cases.”23 Just as affirmative action has divided the ranks of anti-racists over the past forty years, so, too, did the picketing at issue in Hughes divide the NAACP. A local branch of the NAACP was one of the sponsors of the picketing. But members of the national organization internally expressed disquiet. One was “very disturbed,” because the picketing “appear[ed] to condone a quota system” that would backfire on blacks seeking employment opportunities outside of communities with large numbers of Negroes. Another saw the demand for proportional hiring as “unsound.” The NAACP, this member contended,

  should base its demands on “the democratic principle that [everyone is] entitled to equal opportunity based upon merit and ability to compete in the labor market without being pre-judged on account of race or color.…But proportional picketing is at variance with this great sustaining principle and in place of the criterion of equality and merit substitutes artificial criteria measured by the amount of business the particular employer may derive in the particular community.”24

  The Supreme Court decided Hughes at a time when, as a matter of federal constitutional law, racial segregation was deemed to be consistent with the Equal Protection Clause so long as racially separate facilities were equal. This was also a period during which there existed no federal statutes prohibiting private employers from engaging in racial discrimination and in which state or local antidiscrimination laws were notoriously underenforced. In other words, Hughes was decided when open, racist discrimination in employment (and many other activities) was pervasive and largely beyond legal redress. Yet even then, the prospect of “quotas” proved more unsettling to a wide range of observers than the plight of those who sought to use picketing and proportionalism to gain what Justice Roger B. Traynor called, sympathetically, “a foothold in the struggle for economic equality.”25

  CIVIL RIGHTS AS “SPECIAL BENEFITS” FOR BLACKS: THE 1950S AND 1960S

  A third development prior to the emergence of widespread institutionalized affirmative action was the Civil Rights Revolution—the eruption of protest and reform between the mid-1950s and mid-1960s that prompted invalidation of government-sponsored racial segregation (Brown v. Board of Education), prohibitions against racial discrimination in private business enterprises (Civil Rights Act of 1964), action against racial disenfranchisement (Voting Rights Act of 1965), the removal of racial criteria from immigration and naturalization requirements, and a decisive turn in public opinion against the proposition that, in principle, whites ought to be privileged over nonwhites. Open, obdurate, unapologetic, nationwide discr
imination against racial minorities was such a massive obstacle that removing it took up virtually all of the energy and attention of anti-racist activists. Many could think of nothing beyond prohibiting explicit racial exclusion. Some thought that the cessation of invidious racial discrimination would constitute the end of the race problem and that a legal system in which race was banished as an acceptable signal or marker for any purpose would allow the flowering of a racially egalitarian promised land.

  As the walls of Jim Crow segregation and open exclusion collapsed, however, increasing numbers of observers began to perceive that the mere cessation of invidious discrimination, though critical, would leave unaddressed destructive vestiges of past oppression, such as education deficits caused by many decades of inferior schooling. It dawned on these onlookers that the consequences of past wrongdoing would, without intervention, continue to hobble blacks. Dissidents began to argue in favor of programs that would discriminate racially in favor of blacks to compensate (at least partially) for the losses caused by anti-black discrimination. In 1962, for example, a chapter of the Congress of Racial Equality (CORE) negotiated an agreement in which a firm promised to give Negroes and Puerto Ricans “exclusive exposure” for at least a week when it hired its next fifty employees. Theretofore, a CORE official explained, “we used to talk simply of merit employment, i.e., hiring the best qualified person … regardless of race.” But now, he continued, “CORE is talking in terms of ‘compensatory’ hiring. We are approaching employers with the proposition that they have effectively excluded Negroes from their work force for a long time and that they now have a responsibility and obligation to make up for past sins.”26