Race, Affirmative Action, and the Law

by Randall Kennedy

  PROBLEMS WITH COLOR BLINDNESS

  There are, however, problems with the proposition that “under our Constitution, the government may not make distinctions on the basis of race.”35 Few color-blind immediatists are actually committed to erasing all governmental racial distinctions. Most have a narrower commitment than that—color blindness in routine matters, but with a safety hatch that permits attentiveness to race when “necessary.” In Johnson v. California, the Supreme Court adjudicated the constitutionality of a policy under which California prison officials racially segregated prisoners for their first several weeks of incarceration to prevent violence fomented by racial gangs.36 The Court held that, despite the prison context, officials were still required to justify this racial discrimination to the same extent as any other governmental racial discrimination. Justices Thomas and Scalia dissented. The Court’s leading color-blind immediatists argued that a due regard for the expertise of prison authorities and the reality of prison violence justified relaxing the normal rules regulating governmental racial distinctions. Their argument is reasonable, but at odds with the declaration that “our Constitution is color blind.”

  Thomas and Scalia say they believe that the Constitution should be color blind—except in an emergency. That raises the question of why the lingering destructive consequences of past racial wrongs do not count as “emergencies” that justify the use of racially selective measures. These circumstances could be deemed emergencies. What Professor Nathan Glazer observed decades ago continues to obtain today:

  General principles that mean justice are often suspended to correct special cases of injustice, as when the immigration laws are suspended to let in a body of political refugees, or moneys are made available to those suffering from floods or other disasters. Negroes are victims of a man-made disaster more serious than any flood.l 37

  Glazer is absolutely right: racial minorities, particularly blacks, have been hit by man-made disasters more serious than any flood. But Thomas, Scalia, and those of similar mind have decided to decline to designate those catastrophes as such.m By conceding, however, that in some circumstances the government may properly differentiate on a racial basis, color-blind constitutionalists confess that they do not believe literally that government must never make racial distinctions. Rather, they believe that only under exceptional circumstances may the government properly differentiate on a racial basis. The issue then becomes identifying those circumstances, a task that gives rise to the inescapable messiness of judicial line drawing. The vaunted simplicity and clarity of constitutional color blindness is not so simple and clear after all. There is no escape from the necessity and risk of judgment.

  Previously, I noted that an allure of color blindness is its association with admirable figures who have used color-blindness rhetoric to oppose white supremacism. I think here of abolitionists, founders of the National Association for the Advancement of Colored People (NAACP), and the organizers of the Student Non-Violent Coordinating Committee (SNCC). One should recognize, however, another facet of the history of color blindness: false proponents who use its rhetoric only tactically. Enemies of Brown v. Board of Education long fought against it, only to embrace a narrow version of the landmark ruling to forestall the implementation of a broader conception of desegregation.38 Similarly, white supremacists long fought against any and all versions of color blindness, only to embrace eventually a version serviceable for suppressing affirmative action.n This describes the trajectory of a number of influential figures, including Senators Sam Ervin and Jesse Helms.39 It also describes the evolution of Supreme Court Justice (and later Chief Justice) William H. Rehnquist. A law clerk to Justice Robert H. Jackson when Brown v. Board of Education was before the Supreme Court, the young Rehnquist opposed invalidating segregation (though he later lied about this matter during confirmation hearings before the Senate).40 Nothing that Rehnquist did prior to his elevation to the high court suggested that he had substantially changed his mind as he matured. As a justice, he persistently sought to constrain Brown’s scope. He also resisted exporting to new areas antidiscrimination norms helpful to minorities. For example, when the issue arose whether racially discriminatory peremptory challenges should be prohibited as violative of the Equal Protection Clause, Rehnquist characteristically voted in the negative.41 With remarkably few exceptions, he somehow managed to avoid detecting illicit discrimination against racial minorities in the many cases that came before him during his long tenure.42 Just as consistently, he ruled in favor of whites claiming to be victims of reverse discrimination in affirmative action litigation. Rehnquist was a notably low-key justice. But in several affirmative action disputes, Rehnquist exhibited an indignation that seldom surfaced in other contexts. Indifferent to or tolerant of racial policies that wrongly disadvantage racial minorities, Rehnquist was keenly alert to racial policies he perceived as unfair to whites. Resistant to color-blind constitutionalism when open, invidious racial discrimination oppressed colored people, Rehnquist was all too willing to deploy color blindness against affirmative action that would benefit racial minorities.43 I am not suggesting that racism infects all opposition to affirmative action. I am saying that racism does infect some—indeed, a substantial element—of the opposition. Indeed, antagonism toward affirmative action has been a signature symptom of “color blind” racism.o

  Immediatist color blindness is also marred by an insistence, on the part of some of its proponents, that affirmative action is the moral and legal equivalent of Jim Crow segregation and kindred forms of racial oppression. A striking example is found in the jurisprudence of Justice Clarence Thomas, who declares:

  I believe that there is a moral [and] constitutional equivalence … between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality.…

  That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race.…44

  Thomas’s equating of racial distinctions intended to impose white supremacy with racial distinctions intended to undo white supremacy is one of the silliest, albeit influential, formulations in all of American law. As Professor Stanley Fish trenchantly remarks:

  to argue that affirmative action, which gives preferential treatment to disadvantaged minorities as part of a plan to achieve social equality, is no different from the policies that created the disadvantages in the first place is travesty of reasoning. Reverse Racism is a cogent description of affirmative action only if one considers the career of racism to be morally and medically indistinguishable from the therapy we apply to it.45

  When the University of Texas practiced Jim Crow segregation, it excluded all blacks categorically because they were black, pursuant to a state policy that was based on a belief in the contaminating inferiority of African Americans and a desire to express and propound that belief. When the University of Texas practices affirmative action, the policy decreases by a relatively small amount whites’ chances for admission. The large majority of seats continue to be occupied by whites. When affirmative action contributes to the rejection of a white candidate (who would have been accepted if he were black), the aim is not to express or propound disdain for him because of his race; the aim is to undo past racial wrongs or to foster integration or to facilitate diversity. Those who say that intent is immaterial are wrong. An accidental slap is altogether different from an intentional one. A sign declaring “Blacks Welcome!” means something altogether different from a sign declaring “Blacks Unwelcome!”—though both contain a racial distinction.

  Color-blind constitutionalism does not require negating the obvious difference between segregation and affirmative action. One could concede, as one sensibly should, that invidious discrimination rests on a different moral and legal plane than positive discrimination (i.e., affirmative action) yet still conclude that the latter (like the former)
is unwise and unlawful. Judge Thomas Gibbs Gee showed this to be so in an opinion voicing his disagreement with a Supreme Court decision upholding an affirmative action program. Gee said that, as a lower-court judge, he would follow what he perceived to be the Supreme Court’s erroneous judgment because, to him, affirmative action was merely mistaken as opposed to evil. Judge Gee declared that if he thought affirmative action were evil—truly equivalent to slavery or segregation—he would have felt honor-bound to resign rather than enforce a malevolent social policy.46 Justice Thomas and like-minded immediatists, however, refuse to make such distinctions and instead paint with excessively broad strokes, proclaiming all the while that their own personal policy preferences have nothing to do with their judicial rulings.

  Fortunately, assertions of mistaken equivalence have provoked judicial critique, the most pointed and sustained of which is found in a dissent written by Justice John Paul Stevens (and joined by Justice Ruth Bader Ginsburg).47 Contrary to what Thomas maintains, Stevens argues that there is a gaping difference “between a decision by the majority to impose a special burden on the members of a minority race and a decision by the majority to provide a benefit to certain members of that minority notwithstanding its incidental burden on some members of the majority.” Striving to clarify a difference that he perceives to be virtually self-evident, Stevens first posits the difference abstractly and then offers examples that provide concrete particularity to his analysis. “There is no moral or constitutional equivalence,” he writes, “between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination.” Whereas “invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority, … remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society.” It does no good, Stevens remarks, to ignore the gulf that should be seen as separating positive from negative racial distinctions. To do so, he complains, is to

  disregard the difference between a “No Trespassing” sign and a welcome mat. It would treat a Dixiecrat Senator’s decision to vote against Thurgood Marshall’s confirmation in order to keep African Americans off the Supreme Court as on a par with President Johnson’s evaluation of his nominee’s race as a positive factor. It would equate a law that made black citizens ineligible for military service with a program aimed at recruiting black soldiers.

  Using the equivalence of negative and positive racial discrimination as a predicate, purveyors of color-blind immediatism threaten to devour public policies much needed in the ongoing struggle against racial hierarchy that the color-blind slogan once aided. If race-conscious public policy is verboten (except in the event of the sort of emergencies that Justices Thomas and Scalia are willing to recognize), then the legitimacy of affirmative action is nonexistent. Color-blind immediatism, moreover, threatens not merely hard forms of affirmative action but soft forms, too, including disparate-impact antidiscrimination law.

  The central case in disparate-impact law is Griggs v. Duke Power Co. (1971), the Supreme Court’s first substantive adjudication of a suit arising from Title VII of the Civil Rights Act of 1964.48 The defendant in Griggs organized its workforce in a way that perfectly mirrored Jim Crow etiquette: the lowest-ranking “white” job was higher than the highest “Negro” job. When the Civil Rights Act took effect, the defendant ended its two-tier system but simultaneously imposed new requirements for hiring and promotion. These new requirements—a high school diploma and minimal scores on a standardized aptitude test—made no reference to race and were administered evenhandedly to applicants of all races. Still, they had an adverse effect on a considerably larger percentage of black as opposed to white applicants. Black workers who were denied positions on account of the new requirements sued under Title VII. Lower courts ruled against them, finding that the defendant had not imposed the new requirements for the purpose of excluding a disproportionate number of blacks. The plaintiffs asserted, however, that even if the defendant had acted with no racial purpose, its conduct still amounted to illegal racial discrimination under Title VII, because (1) the employment requirements generated a “disparate impact” (i.e., excluded a considerably greater percentage of blacks than whites) and (2) the employer could not show that the requirements in question actually revealed the presence or absence of skills or knowledge that the business truly needed employees to have. Somewhat surprisingly, the Supreme Court embraced the plaintiffs’ argument. Without dissent and with President Richard Nixon’s appointee, Chief Justice Warren Burger, writing for the Court, the justices agreed that the new requirements created disparate impact. The justices also agreed that the defendant had failed to justify adequately its reliance on requirements that generated disparate impact. After all, in previous times, (white) employees seemed to have done just fine without obtaining a high school diploma. As for the standardized test, the defendant had failed to have it validated, meaning that Duke Power Co. had failed to have experts examine the test to make sure that it looked for the precise skills needed by the business, as opposed to mere general knowledge.

  “What is required by Congress,” Chief Justice Burger wrote, “is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other permissible classification.”49 Burger’s definition of barriers “operat[ing] invidiously to discriminate” included more, however, than purposefully treating certain people worse or better than others on account of race. It also included using, without adequate justification, nonracial indicia that have a disproportionate adverse effect on a plaintiff’s racial group. In other words, the Court interpreted Title VII as prohibiting not only unjustified direct discrimination but also unjustified indirect discrimination—exclusions stemming from disabilities presumed to arise from past racial mistreatment, for instance, as was the case in Griggs, inferior education caused by segregated schooling. The prohibition on criteria causing disparate impact is not unequivocal. It does not necessarily bar criteria that, because of past racial wrongs, disproportionately burden vulnerable groups. If a business needs workers who know trigonometry, it is not disabled by Title VII from testing for that knowledge, even though the consequence of doing so disproportionately excludes blacks on account of historical racial inequities regarding education. Griggs simply demands that the need cited by the business be real. “If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance,” Burger declared, “the practice is prohibited.”50

  Griggs was an interpretation of a statute—Title VII. But some jurists thought that the methodology of Griggs should be constitutionalized so that, even in the absence of a racial motivation, public practices or policies that impose a disparate impact on racial minorities without adequate justification could still be invalidated. In the early 1970s, several courts did constitutionalize Griggs.51 The lesson of these rulings was that satisfying the Equal Protection Clause required more than merely the absence of an intention to disadvantage racial minorities as such. These rulings maintained that officials must also take the affirmative step of refraining from imposing avoidable harms on racial minorities. Imagine a municipal employer seeking to fill ten openings for positions on the police force. One thousand people apply for the job. Officials whimsically, but with no consciousness of race, decide to make knowledge of poetry a job requirement. That requirement knocks out a disproportionate number of racial-minority applicants. Under the disparate-impact theory, that requirement is racially discriminatory unless it can be shown to be job-related, despite the fact that officials used it with no attentiveness to race whatsoever. Indeed, under the Griggs model, lack of attentiveness to race is part of the problem. The Griggs regime demands that decision makers be concerned with race insofar as they can refrain from imposing avoidable burdens upon racial minorities. Under Griggs, it is not enough to be innocent of intending to harm for racial reasons. U
nder Griggs, even if the decision maker is innocent in terms of intention, it must still minimize any harms imposed if those harms bear down disproportionately on racial minorities. Griggs insists that decision makers take that extra step.

  By extending Griggs from its statutory origins to the broader field of federal constitutional law, some courts ruled that, for public authorities, a soft form of affirmative action was required—not merely allowed, but actually mandated. In 1976, however, the Supreme Court repudiated the constitutionalizing of Griggs. In Washington v. Davis and subsequent cases,52 the Court held that in order to make out a racial discrimination claim under the Fourteenth Amendment, a plaintiff must prove discriminatory intent. The Court ruled that it is not enough to show that a challenged policy imposes disparate impact and that the defendant cannot set forth a good justification for the challenged decision or policy. The Court insisted upon proof that the defendant, for racial reasons, intended to bring about the adverse effect.53

  Washington v. Davis and its progeny have been harshly criticized for inhibiting courts from acting on constitutional grounds against all but the most blatant types of racial mistreatment. The Washington court, however, clearly indicated that legislative bodies seeking to address more subtle or structural forms of racial subordination were free to enact statutes deploying the disparate-impact theory. Color-blind immediatists have opposed that grant of judicial permission.

  During the Reagan years, Attorney General Edwin Meese orchestrated an attack on the disparate-impact theory of discrimination that emanated from the Department of Justice’s Office of Legal Policy. Revealingly titled “Redefining Discrimination: ‘Disparate Impact’ and the Institutionalization of Affirmative Action,” the department produced a Report to the Attorney General, which charged that “discrimination” as traditionally understood had been “redefined.” As traditionally understood, “discrimination” entailed conduct motivated by illicit considerations (i.e., race, gender, religion, etc.). As redefined by disparate impact, “discrimination” now also forbade a much wider array of conduct: (1) decisions or policies in which character of the motive behind the conduct is not dispositive; (2) conduct generating statistically disproportionate adverse effects; and (3) conduct found to be wanting in justification in light of the disparate impact created. The Reagan-Meese Department of Justice objected to this expanded conception of “discrimination”: