IN DEFENSE OF AFFIRMATIVE ACTION
Schwartz, Herman
The Reagan administration's assault on the rights of minorities and women has focused on the existing policy of affirmative action. This strategy may be shrewd politics but it is...
...The black unemployment rate-21 percent in early 1983—is double that for whites and the gap continues to increase...
...Affirmative action has been defined as "a public or private program designed to equalize hiring and admission opportunities for historically disadvantaged groups by taking into consideration those very characteristics which have been used to deny them equal treatment...
...Quoted from the U.S...
...Reynolds's worries about "stifling the creative spirit...
...A black policewoman was running the department's communityrelations operation but was not promoted to the appropriate rank, and of course was paid far less than a similarly responsible white male...
...Increasing numbers had begun to penetrate employment areas of great importance in our society, such as state and local government...
...They are not the basis for charges that affirmative action is equivalent to racism and for perverting the words of Dr...
...Many had only recently obtained their first promising jobs...
...The Reagan administration has broken with this tradition...
...As the "old" Civil Rights Commission had reported, "By the end of the 1960s, enforcement officials realized that discernible indicators of progress were needed...
...It has approved previously rejected proposals by Louisiana, Mississippi, and North Carolina regarding compliance with federal court orders to rid their higher education systems of racial discrimination...
...The primary reason that white Boston police with ten years' seniority were laid off was not that blacks were retained but because of the veterans' preference...
...In choosing a qualified applicant because of a race preference we merely acknowledge, as Morton Horwitz has pointed out, "the burdens, stigmas, and scars produced by history . . . the injustices heaped on his ancestors and, through them on him...
...The preference may take away some benefits from some white men, but none of them is being beaten, lynched, denied the right to use a bathroom, a place to sleep or eat, being forced to take the dirtiest jobs or denied any work at all, forced to attend dilapidated and mind-killing schools, subjected to brutally unequal justice, or stigmatized as an inferior being...
...Whereas quotas against Jews, Catholics, and others were ceilings to limit and keep these groups out of schools and jobs, today's "benign preferences" are designed to be floors that let minorities into a few places they would not ordinarily enter, and with relatively little impact on others...
...It is, he says, unconstitutional, unlawful, and immoral...
...New York Times, January 18, 1984...
...In 1977, for example, in United Jewish Organizations vs...
...had ties to Communists, replied with a grin, "We'll know in about 35 years, won't we...
...Setting aside, after proof of discrimination, a few places a year for qualified minorities out of hundreds and perhaps thousands of employees, as in the Kaiser plant in the Weber case, or 16 410 medical-school places out of 100 as in Bakke, or 10 percent of federal public work contracts as in Fullilove, or even 50 percent of new hires for a few years as in some employment cases— this has nothing in common with the racism that was inflicted on helpless minorities, and it is a shameful insult to the memory of the tragic victims to lump together the two...
...The confrontation of an almost all-white police force with an angry, socially depressed minority community has produced violence, police brutality (thoroughly documented by the preReagan Civil Rights Commission), and inefficient police work...
...Chavez's concern about the loss of "self-regard" suffered by beneficiaries of such preferences, "spiritually speaking" Justice O'Connor seems to be bearing her loss and spiritual pain quite easily...
...A closer look at the Weber case brings some other factors to light...
...So much for Mr...
...To be published by Pantheon Books, a Division of Random House, Inc...
...And gross inequality is what we still have today...
...All these governmental actions reflect the obvious point that, as Justice Harry Blackmun has said, "in order to get beyond racism, we must first take account of race...
...Although no one strategy can overcome the results of centuries of inequity, the use of goals and timetables in hiring and other benefit distribution programs has helped to make modest improvements...
...Quoting Dr...
...But surely none of these seldom criticized practices can be valued above, or has the serious purpose of undoing, the effects of past and present discrimination...
...For blacks], there is another American "tradition"—one of slavery, segregation, bigotry, and injustice...
...But strain is not inevitable: broad-ranging goals and timetable programs for women and blacks were instituted in the Bell Telephone Company with no such trou411 bles...
...In Detroit, a largely black city where racial friction between a nearly all-white police force and ghetto dissidents had been epidemic and bloody—one such incident sparked the violence in 1968 that led to the death of 34 people—the police department voluntarily instituted an affirmative action plan that, as the Justice Department itself has admitted, "was expressly made as a response to undeniable past discrimination against blacks that had created a police force that was largely unresponsive to the concerns of a substantial portion of the City's population...
...a racial spoils system in America," "stifle the creative spirit," erect artificial barriers, and divide the society...
...Hardly...
...Neither has it enforced §504 of the Disabled Persons Civil Rights Act, which outlaws discrimination, but instead it has tried to reduce the obligation of federal agencies and others to accommodate the handicapped...
...Since then racial incidents and police/ community frictions have declined...
...No one can honestly equate a remedial preference for a disadvantaged (and qualified) minority member with the brutality inflicted on blacks and other minorities by Jim Crow laws and practices...
...Strains can and do result, especially if deliberately stirred up...
...The racial preferences involved in those programs were vigorously debated with a vocal minority led by President Andrew Johnson, who argued that the preferences wrongly discriminated against whites...
...It has also refused to follow a congressional mandate that 406 the Department of Justice intervene frequently on behalf of retarded, mentally disturbed, and other children and adults institutionalized in intolerable conditions...
...Abram is considered an administration man) a single person with a record of leadership or even of supporting activity on behalf of civil rights and minority advance...
...There were also large jumps in minority and female employment among firefighters, and sheet metal and electrical workers...
...On the other hand, some whites may be upset, even if, as the administration urges, the remedies are limited to specific identifiable victims of discriminatory practices...
...The first black policeman in New Orleans was not hired until 1950, and the bathrooms were segregated as late as the mid-1960s...
...Klutznick,' six members of the Court led by Chief Justice Burger unequivocally upheld a congressional set-aside of 10 percent for minority contractors on federal public works programs.' All members of the present Court except for Justice O'Connor have passed on affirmative action in one or more of these four cases, and each has upheld it at one time or another...
...Supreme Court] 144 (1977...
...Ferguson, as Pendleton and Reynolds assert...
...If a black applicant can prove that an employer wrongly discriminated against him personally, he would be entitled to the seniority and other benefits that he would have had but for the discrimination— with the administration's blessing—and this would give him competitive seniority over some white employees regardless of those employees' innocence...
...Reynolds said was "wrongly decided...
...This has produced a serious and nasty split within the civil rights movement...
...Supreme Court] 199 (1979...
...Moreover, but for the affirmative action plan, there would not have been any craft training program at the plant at all, for any whites...
...Studies in 1983 show, for example, that from 1974 to 1980 minority employment with employers subject to federal affirmative action requirements rose 20 percent, almost twice the increase elsewhere...
...against the background of segregation, would render illusory the promise of Brown...
...Equal is equal" proclaims Morris Abram, and that's certainly true...
...a recent Wellesley study found that black women are not only suffering in the labor market, but they receive substantially less public assistance and child support than white women...
...Copyright ® 1984 by the William 0. Douglas Inquiry into the State of Individual Freedom...
...For example, does anyone believe that blacks like Civil Rights Commission Chairman Clarence Pendleton or Equal Employment Opportunities Commission Chairman Clarence Thomas were picked because of the color of their eyes...
...University of California vs...
...The history and culture of oppression, transmitted through legally anonymous generations, is made antiseptic when each individual is treated as a separate being, disconnected from history...
...443 U.S...
...There are indeed problems with affirmative action, but not of the kind or magnitude that Messrs...
...Carey,' the Supreme Court upheld a New York statute that "deliberately increased the nonwhite majorities in certain districts in order to enhance the opportunity for election of nonwhite representatives from those districts," even if it disadvantaged certain white Jewish communities...
...As William Coleman, secretary of transportation in the Ford administration, put it, For black Americans, racial equality is a tradition without a past...
...affirmative action goals are our only instrument for focusing sustained attention...
...Skepticism seems especially justified when some of those making the demand have in the past alWays been indifferent to color-hurt minorities and still oppose the struggle for equal rights in almost every other sphere...
...The same result obtains on the lower-court levels...
...In the Bakke case,' five members of the Court upheld the constitutionality of a state's favorable consideration of race as a factor in university admissions...
...President Reagan's spokespeople—Assistant Attorney General for Civil Rights William Bradford Reynolds and Reagan's Civil Rights Commission appointees Clarence Pendleton and Morris Abram—declare their unlimited devotion to fighting discrimination and furthering civil rights, and in Abram's case there is an honorable track record...
...Reynolds's, and Ms...
...Affirmative action is indisputably constitutional...
...Once these problems emerged, however, many schools set up special remedial programs that, like the Kaiser craft training plan, often benefited needy whites as well...
...They have all failed...
...The legal position was stated by Morris Abram, in explaining why the reshaped Commission hastened to do Reagan's bidding at its very first meeting by withdrawing prior Commission approval of goals and timetables: I do not need any further study of a principle that comes from the basic bedrock of the Constitution, in which the words say that every person in the land shall be entitled to the equal protection of the law...
...The Kaiser plan (adopted "voluntarily" to avoid employment discrimination suits by blacks and the loss of federal contracts) contemplated hiring only three to four minority members a year, out of a craft work force of 275-300 and a total work force of thousands...
...In the lay-off cases, time sharing and other ways of avoiding the dismissals—including raising more money—can be devised...
...Midge Decter, writing in the Wall Street Journal a few years ago, sympathized with black and female beneficiaries of affirmative action programs for the "self-doubts" and loss of "self-regard" that she is sure they suffer, "spiritually speaking," for their "unearned special privileges...
...9 U.S...
...414...
...Judicial and other appointments have gone overwhelmingly to white males, even in the heavily black District of Columbia, where only 3 of 14 judges appointed by Reagan have been members of racial minorities...
...Ferguson and worse...
...It crusaded for a specific intent rule that would have greatly handicapped both federal enforcement and private plaintiffs in voting rights and housing cases, and grudgingly surrendered on voting rights when Congress overwhelmingly declined to go along...
...Morton Horwitz, "The Jurisprudence of Brown and the Dilemmas of Liberalism," Harvard Civil Rights–Civil Liberties Law Review 14 (1979): 599, 610...
...Employment of women by covered contractors rose 15 percent, but only 2 percent among others...
...We must close these gaps so that we do not remain two nations, divided by race and gender...
...Reynolds has only praise for these same statutes, which he claims mandate "race neutrality...
...Apart from the obvious political expediency and ideological reflex of this administration's unvarying conclusion that the "haves" deserve government help and the "have-nots" don't, President Reagan and his allies present two related arguments: (1) hiring and other distributional decisions should be made solely on the basis of individual merit...
...The plight of black America not only remains grave, but in many respects, it is getting worse...
...And the economic condition of black women, who now head 41 percent of the 6.4 million black families, is particularly bad...
...Reynolds in a South Carolina case instructing his trial attorneys to make "those bastards...
...Should a white policeman or fire fighter with ten years in the department be laid off when a black or a woman with less seniority is kept because an affirmative action decree is in force...
...It is a hard issue, about which reasonable people can differ...
...Or that Linda Chavez Gersten was made the new executive director for reasons having nothing to do with the fact that her maiden and professional surname is Chavez...
...s Board of Education vs...
...Only 3 percent of the nation's lawyers and doctors are black and only 4 percent of its managers, but over 50 percent of its maids and garbage collectors...
...When the Equal Employment Opportunity Commission tried to file a brief in support of the New Orleans plan, Justice pressured it into not doing so, even though the brief had already been written and approved...
...Some of these examples are less laudable than others...
...and has intervened against black plaintiffs in school desegregation cases, with Mr...
...All these acts and policies are in addition to the administration's position on goals and timetables and in most cases represent a 180-degree shift from the position of all prior administrations...
...No comparable programs existed or were established for whites...
...Will racially influenced hiring take us back to Plessy vs...
...jump through every hoop...
...The pre-Reagan Civil Rights Commission found that fiscal cutbacks caused by the 1974-75 recession had a devastating effect on minorities in local government...
...For it has not only persistently fought to curtail minority and women's rights in many contexts, but it has used "separate lists" based on color, sex, and ethnic origin whenever politically or otherwise useful...
...Black life expectancy is about six years less than that of whites...
...And if it were shown that any minority is being victimized by intentional discrimination and that the only way to get more of that minority into a relatively representative portion of the work force or school is through an affirmative action plan, then these people would be entitled to such a remedy...
...This is not to say that Reagan should not have chosen a woman...
...And that Congress knew what it was doing...
...But is affirmative action constitutional and legal...
...Even without such a decision, the Court's language will probably deter lower courts from entering such decrees until further clarification, and will discourage settlements...
...But the choice of Sandra O'Connor can be explained and justified only by the use of affirmative action and a separate list, not by some notion of neutral "individual merit" on a single list...
...Where women are concerned, the administration has urged sharp limitations on the nondiscrimination obligations of educational institutions receiving federal money, has opposed the Equal Rights Amendment, and has opposed equal pay for equal work...
...412 Such race-conscious selection within police departments has worked...
...Few other remedies work as well or as quickly...
...Supreme Court] — (June 12, 1984...
...That could not have been said of any previous administration of the past 50 years...
...The attack on affirmative action is only a small part of this administration's campaign against the hard-won rights of blacks, women, and other groups that suffer the inequities of society...
...Supreme Court] 262 (1978...
...All of this represents a nadir of "Newspeak," all too appropriate for this administration in Orwell's year...
...Several civil rights organizations obtained a copy of the brief, which was widely available, and, adopting it as their own, brought it to the attention of the court...
...Since 1964 this country has developed and refined a body of constitutional, statutory, and regulatory approaches designed to exorcise the existence and effects of the racism and sexism so deeply entrenched in our society...
...The seniority layoff problem is undeniably the most troubling, for in this case people lose jobs they have, obviously a more serious matter than not getting a job you want but don't have...
...Nothing will ultimately divide a society more than this kind of preference and this kind of reverse discrimination.' 408 In short, any form of race preference is equivalent to racism...
...A new Boston University special admissions program for black medical students will start with three a year, with the hope of rising to ten, increasing the minority enrollment at the school by 2 percent...
...Not once but many times the Supreme Court has upheld the legality of considering race to remedy the wrongs of prejudice and discrimination...
...In the Memphis firefighters' case, the Court ruled that the concern for seniority reflected in Title VII of the Civil Rights Act of 1964 barred federal courts from overriding seniority to maintain gains for minorities from affirmative action plans...
...He did stress that the choice must be individualized, but his choice of the Harvard program as a model gave away the ball game because a key part of it (described in the appendix to his opinion but not in the excerpt he chose to quote) is a certain number of minority admissions as a goal...
...Obviously, she was on a "separate list," because on any unitary list this obscure lower-court state judge, with no federal experience and no national reputation, would never have come to mind as a plausible choice for the highest court...
...One final note...
...Beyond the wrongs of the past are the wrongs of the present...
...The gap between white and black family income, which prior to the '70s had narrowed a bit, has steadily edged wider, so that black-family income is now only 55 percent of that of whites...
...That was why we fought the Civil War," he once told the New York Times...
...Bakke, 438 U.S...
...Equal means equal...
...In light of dismal predictions of slow economic recovery and continuing high unemployment, this recession threatens to lock these groups into place as a permanent, expendable economic and social underclass...
...Those unhappy conditions were in fact a major reason for extending Title VII of the Civil Rights Act to state and local governments...
...A craft job would have been a significant step up in money, status, and working conditions...
...And, like so many other beneficiaries of affirmative action given an opportunity that would otherwise be unavailable, she may perform well...
...Another description is Ann Fagan Ginger's: "Affirmative action means that someone who has the potential for being a good employee, apprentice, supervisor, or professional, but who lacks the formal, paper qualification customarily required, is nonetheless offered an opportunity to get into the classroom, apprenticeship program, or job, in order to enable the applicant to overcome the effects of past discrimination...
...Abram claims, so clear by virtue of principles drawn from the "basic bedrock of the Constitution" that no "further study" is necessary...
...has held up as a model a school desegregation plan it negotiated in Bakersfield, California, which the New York Times called a "blueprint for evasion and for continuing the administration's lax approach to school desegregation...
...Although the decisions have been based on varying grounds, with many differing opinions, the legal consequence is clear: affirmative action is lawful under both the Constitution and the statutes...
...Nevertheless, this is the one situation in which the Supreme Court has struck down an affirmative action plan...
...The last question is the most troubling...
...In the first year of its operation, Kaiser still selected only a handful of blacks, because it also brought in 22 outside craftsmen, of whom only one was black...
...This administration claims that it does favor "affirmative action" of a kind: "employers should seek out and train minorities," Linda Chavez told a Washington Post interviewer...
...In Memphis, the laid-off white firefighters didn't have longer service than the blacks retained because of the affirmative action decree...
...Where does it stop—aren't we all minorities, and aren't we all therefore entitled...
...New Orleans agreed to a consent decree with promotional goals, which the Justice Department attacked...
...Three members of the Court including Justice Rehnquist explained that "no racial slur or stigma with respect to whites or any other race" was involved...
...In Bakke, only 16 places out of 100 at one medical school were set aside for minorities...
...Martin Luther King, Jr., Thurgood Marshall, and Roy Wilkins to support the claim that anything other than total race neutrality is "discriminatory," Assistant Attorney General Reynolds warns that race consciousness will "creat [e...
...also, the Department of Justice immediately announced it would try to reopen and set aside the hundreds of such affirmative action decrees entered since 1969...
...12 In New Orleans as well, the Justice Department is trying to turn the clock back and get the federal court to reverse itself and strike down goals and timetables for police promotion...
...After so many years of invidious, cruel color-consciousness, of devastating "special treatment," and of harmful "group thinking," one cannot avoid suspicion about the sudden demand for color neutrality just as society begins trying to undo the harm wrought by hostile color-consciousness...
...The same holds true elsewhere, especially when, as in Weber, the program creates new, previously unavailable opportunities for whites...
...Reynolds told an audience of prelaw students in January 1984 that the Fourteenth Amendment was intended to bar taking race into account for any purpose at all, and to ensure race neutrality...
...It has consistently been permissive regarding voting law changes that blacks have questioned, as was the case in Louisiana and North Carolina...
...Why should he pay for Kaiser's wrongs...
...But what of the morality of affirmative action...
...The appointment ended decades of shameful discrimination against women lawyers, discrimination still practiced by Reagan where the lower courts are concerned, since he has appointed very few female federal judges apart from Justice O'Connor— of 123 judgeships, Reagan has appointed no women to the courts of appeals and only 10 to the district benches...
...Whenever we take race into account to hand out benefits, declares Linda Chavez, the new executive director of the Reagan Civil Rights Commission, we "discriminate," "destroy[ing] the sense of self...
...One area where effective job performance almost mandates such group consideration is precisely the area where the administration has chosen to make its stand against affirmative action in the courts: police departments...
...Certain marginally qualified students have been unable to meet the academic demands of colleges and professional schools...
...1784 vs...
...There is really nothing inherently wrong about taking group identity into account, so long as the person selected is qualified, a prerequisite that is an essential element of all affirmative action programs...
...The controversy swirls primarily around the use of numerical goals and timetables for hiring or promotion, for university admissions, and for other benefits...
...We take group identity into account when we put together political slates, when a university gives preference to applicants from a certain part of the country or to the children of alumni, when Brandeis University restricts itself to Jews in choosing a president (as it did when it chose Morris Abram) or Notre Dame to Roman Catholics or Howard University to blacks, when we give preference to veterans for jobs, promotions, and the like, when this administration finds jobs in government for children of cabinet members...
...Perhaps the most prominent recent example of affirmative action is President Reagan's selection of Sandra Day O'Connor for the Supreme Court...
...both groups had equal seniority, but the white workers had priority on an alphabetical list...
...four members would have sustained a fixed 16 percent quota...
...Is its legal status, as Mr...
...Were Martin Luther King, Jr., Thurgood Marshall, Roy Wilkins, and other black leaders against it...
...The Reagan administration vigorously supported tax exemption for schools that discriminate against blacks...
...that kind of increase in Detroit produced a sharp decline in citizen hostility toward the police and a concomitant increase in police efficiency...
...More than half of all black children under three years of age live in homes below the poverty line...
...The Court's opinion gratuitously went far beyond the lay-off problem, however, and intimated disapproval of courtordered quotas for hiring or promotion as well...
...But the administration's record has been one of across-the-board hostility to civil rights, and though the politically potent issue of affirmative action may have dominated rhetorically, it actually represents only part of the offensive...
...The Reagan administration has nevertheless reduced the number of government contracts going to minority firms by almost I0 percent, reversing a 15-year policy...
...Although white employees and the union had been clamoring for such a program for many years, it wasn't until Kaiser felt it had to adopt an affirmative action program that it granted this request...
...Does it amount to discrimination...
...There is no other way...
...And he hadn't discriminated against anyone...
...Insofar as affirmative action is designed to compensate the disadvantaged for past racism, sexism, and other discrimination, many understandably believe that today's majority should not have to pay for their ancestors' sins...
...It is an administration whose leader, when asked whether he agreed with Senator Jesse Helms that FBI files would 413 appropriate lesson from all this is what Hamlet learned: "That one may smile, and smile, and be a villain...
...Apart from the preference involved in setting aside money for "seeking out" and "training" minorities (would this include preference in training programs like the Weber plan, whose legality Mr...
...King, Justice Marshall, and others have said, at this manipulation of their often sorrow-laden eloquence, in order to deny a handful of jobs, school admissions, and other necessities for a decent life to a few disadvantaged blacks out of the many who still suffer from discrimination and would have few opportunities otherwise...
...Just as the race of students must be considered in determining whether a constitutional violation has occurred so also must race be considered in formulating a remedy...
...Perhaps the most Notes ' Myr' Duncan, "The Future of Affirmative Action: A Jurisprudential Critique," Harvard Civil Rights–Civil Liberties Law Review, 17:503 (1982...
...But layoffs on the traditional "last in, first out" basis will undo what little progress we have made toward racial equity...
...Of course we are...
...Over half of all Hispanic city workers in New York lost their jobs between July 1974 and November 1975...
...448 U.S...
...Because they can adversely affect the careers of majority white males, creative ingenuity is often expended to prevent this from happening...
...But this is hardly surprising from an administration in which a White House spokesman denied that the Justice Department was failing to enforce the law—"unless you call all of the decisions of the Supreme Court the law of the land," he explained...
...Striking down in 1971 a North Carolina statute that barred considerations of race in school assignments, the chief justice said: The statute exploits an apparently neutral form to control school assignments' plans by directing that they be "color blind...
...In Fullilove vs...
...Justice Powell in the Bakke case noted the importance of ethnic and other diversity for a university, as a justification for taking race into account as one factor in medical school admissions...
...But it is just as true that equal treatment of unequals perpetuates and aggravates inequality...
...2) racial preferences are always evil and will take us back to Plessy vs...
...But somehow we must undo the cruel consequences of the racism and sexism that still plague us, both for the sake of the victims and to end the enormous human waste that costs society so much...
...Most revealing of this shift is the administration's corruption of the United States Commission on Civil Rights, transforming it from an independent conscience of the national community, committed to advancing civil rights and free from political interference, to an arm of the administration committed to promoting antiminority, antiwomen, and antihandicapped policies...
...This article is part of the forthcoming book Minority Report, edited by Leslie W. Dunbar...
...All this is perhaps not surprising, given a president who as a governor and an opinion leader had opposed every major civil rights law enacted by Congress in the last 20 years, though now Mr...
...Weber,' a 5:2 majority held that private employers could set up a quota system with separate lists for selecting trainees for a newly created craft program...
...A Washington Post analysis the next day charitably described his claims as "overstated," noting that the Bureau of Labor Statistics reports (on which the president relied) showed that "there was no breakthrough...
...In New York City, layoffs in mid-1975 of 371 female officers appointed since January 1973 by the New York City Police Department ended their brief tenure with the previously overwhelmingly male police force...
...Despite the persistent efforts of Reagan's Justice Department, all the courts of appeals have unanimously and repeatedly continued to sustain hiring quotas...
...Less than a month after Congress approved the Fourteenth Amendment in 1866 the very same Congress enacted eight laws exclusively for the freedmen, granting preferential benefits regarding land, education, banking facilities, hospitals, and more...
...Dangerous...
...The new jobs which the president cited included many in sales and office work, where women have always found work" and are paid little...
...In the 1980 Fullilove case, in which the Supreme Court upheld a 10 percent set-aside of federal public works projects for minority contractors, only 0.25 percent of the total annual expenditure for construction in the United States was involved...
...For black 20- to 24-year-old males, the rate—an awful 30 percent—is almost triple that for whites...
...In Weber, a new craft program benefiting both whites and blacks was set up...
...As the New York City Corporation Counsel told the Supreme Court in the Fullilove case about the construction industry (before Mayor Edward Koch decided that affirmative action was an "abomination"), "less drastic means of attempting to eradicate and remedy discrimination have been attempted repeatedly and continuously over the past decade and a half...
...In United Steelworkers of America vs...
...Most discriminatory habits in academia are nonactionable...
...Decter's, Mr...
...Warren Burger, our very conservative chief justice, had made the point even clearer in a prophetic commentary on this administration's efforts to get the courts to ignore race when trying to remedy the ravages of past discrimination...
...Indeed, I believe most of us are afflicthd with such residues...
...Brian Weber was not a rich man and he had to support a family on a modest salary, just like any black worker...
...Stotts, — U.S...
...Supreme Court] 448 (1980...
...Bureau of Labor Statistics data reveal that in 1983 women actually earned less than twothirds of their male counterparts' salaries, and black women earned only 84 percent of the white female incomes...
...Consequently, "goals and timetables" came into use.' Questions may nevertheless remain...
...There is also a major confusion, exploited by opponents, resulting from the fact that we are almost all ethnic or religious minorities...
...15 Firefighters' Union Local No...
...Perhaps, one day America will be color-blind...
...The Weber case discloses another interesting aspect of affirmative action plans...
...Furthermore, even with the separate list, the number of whites adversely affected was really very small...
...It is fueled by the powerful strain of individualism that runs through American history and belief...
...If so, he knows something that the members of the 1865-66 Congress, who adopted that amendment and fought the war, did not...
...Although the situation for women, of all races, is not as bad, the average earnings of women still, at most, are only two-thirds of those of their male counterparts...
...Is group thinking immoral...
...To nail the point home, the Court in January 1984 not once but twice rejected the Justice Department's effort to get it to reconsider the issue where affirmative action hiring plans are adopted by governmental bodies (the Detroit Police Department and the New York 409 State Corrections system), an issue left open in Weber, which had involved a private employer...
...the proposed remedy is ineffectual— it just doesn't work...
...As recently as January 1984, the dean of faculty at Amherst College wrote in the New York Times: In my contacts with a considerable range of academic institutions, I have become aware of pervasive residues of racism and sexism, even among those whose intentions and conscious beliefs are entirely nondiscriminatory...
...And in some cases where local governments have adopted minority set-asides, the Justice Department is trying to annul them as unconstitutional, despite the Supreme Court's decision in Fullilove...
...The recent recession has had a critical impact on minorities and women...
...Even if there had been no separate list for blacks, Weber would not have gotten the position, for there were too many other whites ahead of him anyway...
...We do it all the time, with hardly a murmur of protest from anyone...
...King and others...
...If so, won't we wind up with claims totaling 200 percent of the pie...
...Ginger, "Who Needs Affirmative Action," Harvard Civil Rights–Civil Liberties Law Review, 14 (1979): 265, 268...
...Incidentally, despite Ms...
...The economic con407 dition of female household heads of any race is just as deplorable: 90 percent of the 8.4 million single-parent homes are headed by women, and more than half are below the poverty line...
...Commission on Civil Rights, Affirmative Action in the 1980s: Dismantling the Process of Discrimination, November 1981, p. 19...
...Swann, 402 U.S...
...Yes, but not in the direction that he and this administration want to go...
...Reynolds and Abram claim: problems about whether these programs work, whether they impose heavy burdens, how these burdens can be lightened, and the like...
...The same thing happens constantly with veterans' and other preferences, and few opponents of affirmative action seem to be upset by that...
...Supreme Court] 43, 45-46...
...Equal does not mean you have separate lists of blacks and whites for promotion, any more than you have separate accommodations for blacks and whites for eating...
...This is, after all, an administration that does not include (unless Mr...
...color blindness] would deprive school authorities of the one tool [race consideration] absolutely essential to fulfillment of their constitutional obligation to eliminate existing dual school systems...
...60-61, 25-26...
...This strategy may be shrewd politics but it is meanspirited morally and insupportable legally...
...Nor is this anything new...
...for black teenagers the rate approaches 50 percent...
...In some cases, moreover, group-oriented choices are necessary for effective performance of the job...
...No policy can be...
...What, then, is the basis for the assault on affirmative action...
...Examples are numerous...
...Does affirmative action divide people...
...And a layoff of whites is far more likely to result in quick rehiring than a layoff of blacks, as Boston and Memphis both showed: when the courts in those cases ordered whites to be laid off, money suddenly materialized and all the laid-off workers were promptly rehired...
...If these intimations become law in a future case, efforts to improve employment opportunities for minorities and women will be devastated...
...Of these judgeships, 86 percent went to white males...
...Until 1981 all of our presidents, to a greater or lesser extent, contributed to this effort, even when, like Richard Nixon, they were less than enthusiastic...
...The number of black police officers nationwide rose from 24,000 in 1970 to 43,500 in 1980...
...the black infant mortality rate is nearly double...
...Because they have not had time to acquire adequate seniority, however, minority members and women have been affected disproportionately by the personnel cutbacks occasioned by this recession, and much of their limited progress has thereby been obliterated...
...It takes an extraordinary ignorance of actual life in America today to believe that day has come...
...show Martin Luther King, Jr...
...But affirmative action goals and timetables are really quite different...
...Unfortunately, the Reagan administration's cutbacks on educational programs (for all its talk of support for "affirmative action" in improving education and training) have decimated these programs, with the result that far fewer marginally qualified minority students are being admitted to colleges and professional schools...
...that requirement...
...Civil Rights Commission Chairman Pendleton has conceded that discrimination is not only still with us but is, as he put it, "rampant...
...Among some Jews, affirmative action brings up bitter memories of ceiling quotas, which kept them out of schools and jobs that could on merit have been theirs...
...Commission on Civil Rights, Last Hired, First Fired: Layoffs and Civil Rights (Washington, D.C.: Government Printing Office, 1977), pp...
...430 U.S...
...Emphasis addedis So much for "basic bedrock" constitutional principles...
...In his 1984 State of the Union address, President Reagan claimed dramatic gains for women during the 1983 recovery...
...Aren't those denied a job or another opportunity because of an affirmative action program often innocent of any wrong against the preferred group and just as much in need of the opportunities...
...Indeed, it is hard to contain one's outrage at this perversion of what Dr...
...Affirmative action has, of course, not always been completely effective...
...Of the 16 minority admittees in Bakke, 15 graduated from the medical school...
...Is it true, as Brian Weber's lawyer argued before the Supreme Court, that "you can't avoid discrimination by discriminating...
Vol. 31 • September 1984 • No. 4
