Assault on Affirmative Action

Affirmative action is rooted in an uncomfortable reality: that to remedy the effects of past discrimination against blacks and women it is sometimes necessary to discriminate against white men. The Government shied from stating the proposition so boldly, but beginning with the Nixon Administration it put the principle into practice. Throughout the ’70s Washington pressed employers to set explicit goals and timetables for the hiring of minorities, even if that meant tacitly accepting “reverse discrimination.”

Ronald Reagan has tried to stage a countermarch. At his first press conference after he took office in 1981, Reagan said that some affirmative action programs had been “distorted” into quota systems. “I’m old enough to remember,” he said, “when quotas existed in the U.S. for the purpose of discrimination, and I don’t want to see that happen again.” Since then, his Justice Department has aggressively attacked the use of racial preference in hiring and promotion. William Bradford Reynolds, the outspoken chief of the Justice Department’s civil rights division, insists that affirmative action has done more harm than good. “It’s demeaning because it says people are going to get ahead not because of what they can do, but because of their race.”

Reversing the momentum built by more than a decade of affirmative action has not been easy. Many judges, educators and personnel directors have come to accept racial preference in hiring and school admissions. “Affirmative action is alive and well in this country,” says Barbara Schlei, a Los Angeles attorney who represents management in employment cases. Nonetheless, the climate that nurtured affirmative action has begun to cool perceptibly. “Most companies in the private sector are providing no more than lip service to affirmative action,” says Milton Vickers, director of minority business development for Dade County, Fla. “There has been little monitoring for the past four or five years, and you can tell.”

Since 1970 the Federal Government has required companies that do business with it to submit affirmative action plans. There are about 15,000 such companies, employing 23 million workers. For the past three years the Administration has been trying to ease federal rules that in the past have required employers to set fairly ambitious hiring goals and timetables. When civil rights groups blocked the rule changes by threatening to sue, the Reaganauts resorted to nonenforcement. Under earlier Administrations, 26 companies were barred from doing business with the Federal Government because of affirmative action violations. Under Reagan, none have been so barred.

Last summer the Justice Department thought it gained a key ally in its assault on affirmative action. In Firefighters Local Union No. 1784 vs. Stotts, the U.S. Supreme Court ruled that a lower court judge had no right to force the layoff of white fire fighters in Memphis in order to protect black hiring and promotion gains under a court-ordered affirmative action plan. The language of the court’s opinion appeared to go well beyond the facts of the case. Writing for the majority, Justice Byron White declared that the Civil Rights Act of 1964 was intended only to protect individual victims of proven discrimination. Since under most affirmative action plans whole classes of minorities get preference, the court’s ruling seemed to argue against broad remedies.

Just last week the Equal Employment Opportunity Commission, charged with enforcing the Civil Rights Act of 1964, announced that it would move away from bringing suits aimed at helping entire classes of minorities and instead seek to remedy only individual discrimination, which is more difficult and costly to prove. Said EEOC Commissioner Fred Alvarez: “When somebody tells me they ought to get something because they’re Irish and saw signs in Boston that said IRISH NEED NOT APPLY . . . or because their ancestors were in slavery, I say, ‘So what?’ “

The lower federal courts, however, have kept right on ordering and approving goals and timetables. By and large, they have applied Stotts only to cases in which no discrimination has been proved, and the hiring of a minority leads to the displacement of a white male. Says Judy Goldsmith, president of the National Organization for Women: “The Memphis decision has had very little effect because it did not attack the philosophy of affirmative action.” A few weeks after Stotts, for instance, a federal judge ordered the city of Detroit to rehire 1,000 (mostly black) police officers, many of whom had been hired originally under an affirmative action program but were then laid off during an austerity move. Even in Memphis, the fire department continues to abide by goals stipulating that half of those hired and 20% of those promoted should be black.

Despite the go-slow signals emanating from Washington, many employers in the private sector continue to practice affirmative action. Says Thomas Hunt, an employment-discrimination lawyer in Los Angeles: “I don’t get the type of resistance to affirmative action I did ten or 15 years ago. In the midst of this success, Reynolds is just a speck on the ceiling shooting his mouth off.” Hunt estimates that at least 60% of the nation’s companies now use goals and timetables. He knows of none that have abandoned them since Reagan came to office.

There is, of course, a fierce dispute over whether affirmative action works. Says NAACP Legal Defense Fund Counsel Barry Goldstein: “There’s no doubt in my mind that affirmative action has been effective. In 1970 there were about 23,000 black police officers in the country; in 1979 there were 43,000. In 1970 there were appproximately 15,000 black electricians; in 1979 there were 37,000. We’re not just talking about jobs for the black elite, we’re talking about solid jobs in the economy.” Agrees Jonathan Leonard, a Business School professor at the University of California, Berkeley, who recently completed a study of affirmative action for the Department of Labor: “On the whole, these programs seem to have helped reduce discrimination, while there is no statistically significant evidence of reverse discrimination.”

Critics of affirmative action claim that the statistics mislead. “I think it’s debatable whether affirmative action has resulted in any changes that wouldn’t have occurred naturally,” says EEOC Chairman Clarence Thomas. “In the long run, I don’t think the results are going to be so positive.” There will be no marked improvement in minority hiring, he says, until primary and secondary education is improved for lower-class blacks.

Many on both sides of the issue are waiting for the Supreme Court to make some kind of definitive pronouncement on affirmative action. In the 1978 Bakke decision the Justices barred racial quotas in university admissions, but at the same time they appeared to endorse the principle of affirmative action. And a year later, in the Weber case, the court upheld explicit hiring quotas in a voluntary affirmative action plan. Says Duke University Law Professor William Van Alstyne: “There is serious strain within the court.”

If President Reagan gets the opportunity to replace a couple of liberal Justices with conservatives, the court may finally move to outlaw racial preference. “The Stotts ruling is the first piece in the puzzle,” says Vanderbilt University Law Professor Thomas McCoy. “These changes at the Supreme Court and the Cabinet level will eventually be seen as the first pieces in the dismantling of affirmative action.”

Still, as McCoy notes, there is “a very deeply ingrained sentiment–almost a conditioned reflex–in society that we do owe something to the victims of discrimination, and to the heirs of the victims as well.” Regardless of any decrees handed down by Supreme Court Justices or Cabinet officers, affirmative action has permeated personnel offices and public bureaucracies. It may be difficult to frame precise formulas to cure past discrimination without discriminating anew. Yet many employers have begun to feel their way to a commonsense approach, trying to hire and promote minorities and women wherever possible without discriminating against white males at the same time. Not only is this a salve to the corporate conscience, but it is proving a good way to recruit talented employees.