Race, Affirmative Action, and the Law

by Randall Kennedy

  Having offered an ominous portrayal of American race relations, the commission posited that “this deepening racial division is not inevitable. The movement apart can be reversed.” But turning things around, the commission declared, would “require a commitment to national action—compassionate, massive, and sustained, backed by the resources of the most powerful and richest nation on earth. From every American it will require new attitudes, new understanding, and, above all, new will.” Exhorting Americans to address racial conflict in a way that is now difficult to recall or imagine, the commission insisted,

  It is time now to turn with all the purpose at our command to the major unfinished business of this nation. It is time to adopt strategies for action that will produce quick and visible progress. It is time to make good the promises of American democracy to all citizens.n

  As with Johnson’s Howard University speech, there was little follow-up to the commission report. It did, however, facilitate the intellectual and emotional environment in which affirmative action would, on a wide scale, blossom and take root.

  Supplementing white guilt as an ingredient in that environment was black anger. Previously, African Americans had typically kept their anger under wraps, aware that public display would likely trigger severe reprisals. In the latter half of the 1960s, however, substantial numbers of blacks vented their fury openly, even ostentatiously. “Black Power” became a popular slogan. Black Rage became a publishing sensation. The Black Panther Party captured the imagination of radicalized youth. And for several summers, riots erupted in the black ghettos of cities across the United States, eventually causing hundreds of deaths, countless injuries, and the destruction of property worth many millions of dollars. These “long, hot summers” underlined the extent to which the cessation of Jim Crow segregation, albeit important, left untouched economic, cultural, and political dynamics that continued to pin the colored masses to the bottom of the American social pyramid.

  A rising arc of civil unrest, culminating in the massive riots that shook the United States in the aftermath of the assassination of Martin Luther King, Jr., frightened decision makers, upended old assumptions, and encouraged the popularization of ideas that had theretofore been marginalized. Although some leading arbiters of opinion insisted that perpetrators of violence should receive only punishment, others maintained that violent dissent should also be addressed by nurturing faith in upward mobility. “Negroes, and more specifically lower-class Negroes, are social dynamite,” remarked Stanford law professor John Kaplan. “Our only hope to avoid the most explosive and dangerous type of conflict is to grease the axle where it is squeaking and grant them special treatment.”47 “You can put these people to work,” President Johnson stated to a group of business executives, “and you won’t have a revolution because they’ve been left behind. If they’re working, they won’t be throwing bombs in your homes and plants. Keep them busy and they won’t have time to burn your cars.”48 Johnson’s successor, Richard Nixon, expressed a similar view, contending that “we sooner or later must bring those who threaten [domestic peace] back within the system.”o 49

  Nixon ascended to the presidency in 1969 in part due to whites’ unease with social disruption, including the loud protests of militant blacks who were widely viewed as pushing for too much, too hard, too fast. During his campaign against the classic racial liberal Hubert Humphrey, Nixon vowed that if elected he would honor “states’ rights,” restore “law and order,” and appoint to the federal bench “strict constructionists”—all of which connoted a more conservative racial politics. In office, however, Nixon went further than any previous president toward advancing policies that reached beyond mere antidiscrimination norms.50 Nixon supported race-targeted programs aimed at benefiting blacks and other racial minorities that would have been verboten in previous eras—and would probably be forbidden today. Nixon promulgated an executive order to create the Office of Minority Business Enterprise. He championed public-private ownerships aimed at seeding and promoting “black capitalism.” Most important, he used the leverage of the federal government’s role as a consumer to require businesses to try to reach certain goals in terms of hiring racial-minority workers.

  The Nixon administration did not invent contracting as a technique for seeking to assure the employment of minority workers. In the waning months of the Johnson administration, Labor Department officials involved with construction projects sought to prod local governments, private contractors, and unions into hiring black workers, particularly in the craft trades. In Philadelphia in 1967, the Sheet Metal Workers Local 19 had 1,300 to 1,400 members but no blacks. Similarly, Elevator Constructors Local 5 had nearly 650 members and helpers but not a black among them. The locals claimed, of course, that they did not discriminate, that the absence of blacks was due to a lack of training, experience, or references. This was true to some extent. Even truer, though, was that the union locals established or retained their procedures at least in part to “protect” the racial homogeneity of their guilds.

  To disrupt this pattern of exclusion, Labor Department officials threatened to cut off federal funding unless contractors promised that they would affirmatively act in accord with antidiscrimination mandates and show good faith toward hiring racial-minority workers. This Labor Department intervention became known as the Philadelphia Plan. In its initial incarnation, near the end of the Johnson administration, it lasted only briefly. When the United States comptroller general declared that the plan was procedurally invalid, the Johnson administration quickly and quietly abandoned it.

  But then came a surprising turn of events: the incoming administration of Richard Nixon revived, strengthened, and enlarged the Philadelphia Plan.51 The revised plan modified the procedure to which the comptroller general had objected. In the initial plan, the Office of Federal Contract Compliance Programs (OFCCP) declined to state definite minimum standards for bidders, in order to avoid the charge that it was imposing “quotas.” If the OFCCP was dissatisfied with the hiring goals set forth by the lowest bidder, it would seek to negotiate a higher goal or even reopen the bidding. The comptroller general ruled that the indefiniteness of this arrangement was unfair and unlawful.

  The Nixon administration’s revised Philadelphia Plan set forth, by trade, a range of minority hiring goals that the OFCCP expected to see reflected in bids. The underlying metric on which the ranges were based was representational: employers were expected to hire percentages of minority workers that roughly mirrored the percentage of qualified minority workers in the relevant locale. Failures to reach that standard triggered concerns that the employer was underutilizing available minority labor. The goals were flexible. Employers were given the opportunity to explain any apparent underutilization. Moreover, the bureaucrats administering the plan were loath to shut off federal funding; time and again, they displayed that their bark was far more menacing than their bite. Still, the threat of shutoff appears to have focused the attention of all of the relevant stakeholders.

  The principal actors behind this initiative were Nixon’s labor secretary, George P. Shultz, and his subordinates, several of whom were African American, including, most notably, Arthur A. Fletcher. A former dean of the University of Chicago Graduate School of Business, Shultz displayed an attentiveness to the plight of working-class and poor blacks that was unusual in the conservative, business-oriented circles in which he traveled. In his presidential address to the annual meeting of the Industrial Relations Research Association on December 8, 1968, Secretary-designate Shultz declared that the most important issue of political economy facing the nation was the “appalling unemployment experience of black teenagers.” He called for “special measures” to address this problem, though he neglected to describe any with specificity. What he lacked in specifics, however, he made up for with emphasis, asserting that in the “explosive” racial environment obtaining, employers would simply be unable to conduct business as usual.52

  The Philadelphia Plan and fifty-six s
imilar programs established in cities across the country generated unusual coalitions of allies and adversaries.53 Conservative Republicans and Democrats staunchly opposed them. But so, too, did some liberal Democrats, because of their close ties to organized labor, which generally despised these plans. Reasons for opposition varied. Detractors argued that the plans involved a wasteful regulation of private enterprise, that they encroached upon the prerogatives of organized labor, that they represented the entering wedge of racial quotas, and that they violated a provision of Title VII of the 1964 Civil Rights Act that expressly prohibits the government from requiring any employer to hire anyone on a racial basis.

  More interesting is speculation as to why Nixon supported the plans. Many of their backers were not only outside of Nixon’s electoral coalition but un-amenable to being won over by him. At the same time, many of the plans’ enemies were people essential to the Nixon coalition. The formidable Senate minority leader, Everett M. Dirksen, angrily denounced the Philadelphia Plan, remarking privately that to Senate Republicans it was “about as popular as a crab in a whorehouse.”54 Thus, in terms of electoral advantage, Nixon’s backing of the Philadelphia Plan and its analogues made little sense, at least in the short run.

  Recognizing this, Nixon nonetheless invested political capital in supporting the Philadelphia Plan. Why? Theories abound. One is that the Machiavellian Nixon calculated that he could reap political advantage by dividing racial liberals and labor Democrats, two camps that usually coalesced against him. “Not lost on Nixon,” Professor Hugh Davis Graham writes, “was the delicious prospect of setting organized labor and the civil rights establishment at each other’s Democratic throats.”55

  Another theory is that Nixon was acting out of a sincere desire to assist blacks, notwithstanding his racism and their general aversion to him. Throughout his political career, Nixon exhibited strong mood swings on the race question, sometimes showing outright bigotry, sometimes displaying a surprising solicitude for racial minorities. On the eve of launching the presidential campaign that took him to the White House, Nixon told reporters that “people in the ghetto have to have more than an equal chance. They should be given a dividend.”56 Later he promised to give “those who haven’t had their chance … that little extra start that they need.”57 Nixon may well have seen the Philadelphia Plan as one of those “little extra start[s]” for which he sometimes evinced pride. Comparing his adoption of the Philadelphia Plan to the Johnson White House abandonment of it, Nixon gibed, “Dem[ocrat]s are token-oriented. We are job-oriented.”58

  Another theory is that support for the Philadelphia Plan had to do with the Nixon administration’s determination to lower construction costs. By keeping barriers to entry high for labor, unions were able, so the Nixonians believed, to inflate costs for construction. Shultz and others believed that exorbitant costs could be lowered by removing impediments to market forces, including the obstacle of union-supported racial exclusion.

  The Nixon administration invested a substantial amount of effort protecting the Philadelphia Plan. It quashed a congressional attempt to defund the plan and fended off charges that the plan violated the Civil Rights Act. One of the most impressive of the administration’s spokesmen turned out to be Assistant Secretary of Labor Fletcher. “We must set goals, targets and timetables,” he told reporters in August 1969. “The way we put a man on the moon in less than ten years was with goals, targets and timetables.”59

  The Nixon administration’s surprising support did not last long. By mid-1971 White House operatives had succeeded in transferring Fletcher from his post in the Labor Department to the United Nations, where he could conveniently be ignored. During the reelection campaign of 1972, Nixon was no longer speaking of “little extra starts” for racial minorities but was instead condemning “quotas.” When Nixon won reelection, his new Labor Department secretary was Peter J. Brennan, a former president of the New York Building Trades Council and an outspoken opponent of the sentiments that had generated the Philadelphia Plan.

  The Philadelphia and associated plans constitute important landmarks in the history of affirmative action. They did not succeed in quickly opening up employment opportunities for substantial numbers of blacks, and several of the most recalcitrant unions maintained their virtually lily-white memberships.60 Nevertheless, the plans made three important contributions. First, they disseminated the affirmative action ethos and endowed it with new prestige. Second, they prompted the Labor Department to extend its policy of goal-setting to all entities doing sizable business with the federal government, including colleges and universities. Third, they served as precedents for subsequent affirmative action initiatives.

  Across the country in the early 1970s, in all sorts of forums, public and private, authorities adopted procedures designed to ensure an enlarged colored presence. Explaining his institution’s practice of assessing minority applicants according to a somewhat different metric than that applied to white candidates, the president of the University of Washington observed,

  More and more it became evident to us that just an open door, as it were, at the point of entry to the University, somehow or other seemed insufficient to deal with what was emerging as the greatest internal problem of the United States of America.…[J]‌ust an open door … in view of the cultural circumstances that produced something other than equality was not enough … some more positive contribution had to be made …61

  Other institutions also concluded that an “open door,” albeit preferable to a closed door, would be an insufficient basis for substantial change given prevailing circumstances. Hence, after several years during which a new medical school at the University of California–Davis had had virtually no students of color, it devised a special admissions program under which “disadvantaged” black, Chicano, Asian, and Native American applicants received preferential attention. In 1973, no blacks or Chicanos gained admission via the regular program, but six blacks and eight Chicanos gained admission via the special program. In 1974, no blacks but four Chicanos gained admission via the regular program, while six blacks and seven Chicanos gained admission via the special program.62

  Another example of early-1970s affirmative action was a collective bargaining agreement between the United Steelworkers of America and the Kaiser Aluminum & Chemical Corporation. Pursuant to this arrangement, the Steelworkers and Kaiser reserved for black employees 50 percent of the openings in craft training programs. Prior to this plan, blacks had long been categorically excluded from craftwork. To remedy the continuing effects of past discrimination, the collectively bargained affirmative action program offered craft training to blacks even when they had less seniority than whites who sought craft training.63

  The growing influence of the nascent affirmative action regime generated yet another round of opposition. After having assisted with the institutionalization of affirmative action, President Nixon turned against it. By 1972 he was warning of the specter of a “quota democracy” and, invoking the trope of reverse discrimination, insisting that “you do not correct an ancient injustice by committing a new one.”64 Unreconstructed white supremacists, of course, continued to oppose affirmative action. But so, too, did some former racial liberals, including an influential cadre that developed a distinctive critique. Dubbed “neoconservatives,” this formidable network of academics, journalists, politicians, and policy analysts made rolling back affirmative action one of its principal missions. Disturbed by Black Power sloganeering, offended by assertions of Third Worldism that included denunciations of Israel, alienated by “positive” racial distinctions, which seemed to eschew an earlier commitment to “color blindness,” and fearful of a proportionalism that they perceived as threatening to small ethnic groups (most notably Jews) that achieved a presence in elite institutions and occupations disproportionate to their numbers, neoconservatives emerged as persistent critics of affirmative action.

  THE AFFIRMATIVE ACTION STALEMATE: FROM CARTER TO OBAMA

  Since th
e mid- to late 1970s, affirmative action has been mired in a stalemate. On the one hand, special efforts to ensure the presence of racial minorities in key institutions have become a widespread feature of social life. Every president since Lyndon Johnson has had at least one black in his cabinet, the consequence of an implicit quota (just as there was a period when there existed an implicit quota of one Jewish seat on the Supreme Court). Even presidents on record as opposing affirmative action—Ronald Reagan and the two Bushes—have felt compelled to select at least one Negro to lead an executive branch department. A similar dynamic is observable in virtually every prominent setting imaginable—the allocation of awards (e.g., honorary degrees), the composition of orchestras, the selection of workers, the admission of students, the distribution of governmental largesse.

  To some extent, these practices have received validation from presidents and courts. In 1978, in Regents of the University of California v. Bakke, the Supreme Court held that universities could take race into account in certain ways in selecting students, for purposes of “diversity.” In 1979, in United Steelworkers v. Weber, the Court held that Title VII of the 1964 Civil Rights Act did not prohibit private employers from voluntarily preferring racial- minority applicants to redress past racial discrimination in traditionally segregated jobs. In 1980, in Fullilove v. Klutznick, the Court upheld legislation that provided that recipients of federal funds for public works projects must, absent a waiver, use a certain percentage of those funds to purchase goods and services from minority contractors.