case study draft

Point: Rethinking Affirmative Action

Author(s): Christina F. Jeffrey

Source: Public Productivity & Management Review , Mar., 1997, Vol. 20, No. 3 (Mar., 1997), pp. 228-236

Published by: Taylor & Francis, Ltd.

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POINT

Rethinking Affirmative Action

CHRISTINA F. JEFFREY Kennesaw State University

T his article will deal with affirmative action as practiced in late-20th-century United

States. The topic is interesting because, in spite of the fact that this practice is contrary

to federal law and to American traditions, affirmative action is now assumed by most

governmental, academic, and big business elites to be an unqualified good. The most cursory review of founding and statutory authorities provides a wealth

of documents that contradict the practice of affirmative action:

1. The Declaration of Independence affirms equal natural rights for all. 2. The 14th Amendment to the Constitution guarantees all persons equal protection of the

law. 3. Section 703(h) of Title II of the 1964 Civil Rights Act as amended protects the civil

rights of all Americans by making it unlawful "to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race"; or, in other words, exactly the kind of discrimination that many colleges and universities have practiced for years is illegal.

4. Section 703(j) of the same Civil Rights Act also provides that nothing in the statute is to be interpreted to require preferential treatment for any individual or group on account of racial imbalance between the number of minorities in the workforce and the number in the local population. Or. in other words, quotas are illegal.

I intend to draw on examples, the hallowed case-study approach so favored by teachers of public administration, but will also advance arguments thematically as well. I will begin at the micro level, with the effects of affirmative action on individuals,

and move to the macro, with the effects on society as a whole. Making the case for affirmative action in the 1960s, when Jim Crow was in full

reign, was easy. But public policy comes with unintended consequences, and today all women and minorities, despite efforts to avoid the pernicious effects of affirmative

Author's Note. I gratefully ackowledge the research assistance of Laurel Preler in the preparation of this article. I also wish to thank Dorothy Olshfski for her helpful remarks and the editors of the symposium for

including me.

Public Productivity & Management Review, Vol. 20 No. 3, March 1997 228-236 ? 1997 Sage Publications, Inc.

228

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Jeffrey / RETHINKING AFFIRMATIVE ACTION 229

action programs, and in spite of apparent gains, are actually being hurt. One of these

consequences is the loss of personal reputation. Shelby Steele (1990) gives an excellent

account of this phenomenon-that is, the negative effect that affirmative action

programs have on the self-understanding of minorities who are "privileged" by it-in

his controversial book The Content of Our Character.

The Case of Clarence Thomas

Clarence Thomas is the prototype of a man damaged by the unintended conse-

quences of this system. Recall that President George Bush nominated him to replace

the seat vacated by Justice Thurgood Marshall. Almost immediately, pundits began

calling Thomas Bush's affirmative action nominee. Thomas's principled opposition

to affirmative action was ridiculed for being hypocritical. Because affirmative action

exists, Thomas was accused of benefiting from it. In other words, in some quarters he

commanded no respect, even though he had quite an impressive record for such a

young man.

Critics declared that Clarence Thomas was not the best qualified man for the job.

But George Bush had the foresight to realize that Thomas's legal intellect and judicial

potential were more important considerations than experience on the bench. (Our great

first Chief Justice, John Marshall, had very little judicial experience.) Although some

claim he did little his first year, he learned the job and is now exhibiting signs of

becoming the preeminent conservative justice. Unless Bush had chosen Reagan's

failed nominee, Robert Bork, it is difficult to imagine how he could have found anyone

more acceptable to conservatives. And Clarence Thomas's recent opinions not only

reflect the conservative views of the electorate who supported Bush but have even

impressed some of his harshest critics.

But to this day, Judge Thomas's friends feel the need to defend him on the charge

of benefitting from affirmative action. For example, on July 8, 1996, John Doggett,

Thomas's classmate from Yale Law School, wrote the following in The Washington

Times:

The bad news is that Democrats will continue to demonize Clarence Thomas and other black conservatives in a desperate attempt to maintain political power. The good news is that we black conservatives will ultimately succeed in our war to liberate our people from the liberals' plantation. (p. A19)

The Case of Lani Guinier

There are many examples of women being treated by the Washington establishment in a less than respectful manner, but Lani Guinier's case stands out as particularly

demeaning. A personal friend of President and Mrs. Clinton, she was nominated to be assistant attorney general for civil rights. That nomination ended in ruin, when Clinton,

calling her "antidemocratic" before a national audience, withdrew her nomination. She

told George magazine that she was "humiliated in sort of a grand style" (Burleigh, 1995/1996, p. 253).

The reason I wanted a hearing before the Senate Judiciary Committee was the need I felt for an honest and forthright discussion of what the last 12 years of Civil Rights

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230 PPMR / March 1997

Enforcement has meant for the very real people that the Congress has intended to protect and empower. (Hernandez, 1994, p. 101)

Her views on proportional representation caused her demise. Proportional repre-

sentation is used in many democratic countries and, as early as John C. Calhoun

(Jeffrey, 1995), has been proposed for this one. Although I oppose this form of

affirmative action, a kind of electoral, guaranteed diversity, I believe that a vigorous

debate on the subject would have been healthy. Instead, Ms. Guinier was humiliated

in a "grand" way.

The Case of Colin Powell

In a recent "Dear Colleague" letter from Congressman Barney Frank (D-Mass.),

Frank (1996) implies that Colin Powell benefited from affirmative action. The letter was written in opposition to the Canady-Dole Equal Opportunity Act of 1995 (H.R.

2128), which does away with preferences and quotas, and clearly implies that Powell

owes his success to affirmative action. But many people believe he rose through the

ranks on his own merits in a system designed to promote the best. It is obviously

harmful to General Powell and to society's interest in fairness to imply that General

Powell would not have made it without affirmative action, a charge that now means

quota or preference. Certainly, the military insists that theirs is a strictly merit-based

system.

According to President Clinton's own review of affirmative action, "the Pentagon

tends not to use 'diversity' and rarely uses 'affirmative action.' " The preferred term

is "equal opportunity" (Affirmative Action Review, 1996, p. 4). Unfortunately, most affirmative action programs are not merit based but rather are quota and preference

based. Such programs do not contribute to equal opportunity but instead seek equal

results. If all affirmative action programs were merit based, then a Colin Powell or a

Clarence Thomas, men of achievement and distinction, could enjoy the accolades that

are rightfully theirs. As Harvard Professor Harvey Mansfield (1991) puts it, affirmative

action deprives people of their pride-the one indispensable ingredient for personal satisfaction in one's success.

Affirmative Action and the Loss of Self-Esteem

The founders of the American political regime believed in a moral universe and

universal moral laws. Ours is a government designed to reflect that moral universe. The success of the civil rights movement is a good example of the fact that there is much sympathy in our society for moral truth and justice. It is that sympathy that makes

the individual powerful in America. The Bill of Rights, absent a morally sympathetic majority, would be as worthless as the constitution of the now defunct Soviet Union. And morality combined with a system that reins in power empowers individuals. This is the message we used to teach our children, and the loss of this message, the replacement message that because you are a woman or a minority, you cannot make it in America without government help, is a very damaging message.

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Jeffrey / RETHINKING AFFIRMATIVE ACTION 231

Contributing to the damaging message and betraying elite thinking is Rutgers

President Frances Lawrence, who said that we must "deal with a disadvantaged

population that doesn't have the genetic hereditary background" to score well on the

Scholastic Aptitude Test ("Riled at Rutgers," 1995, p. A 14).

Lawrence may have said it more boldly, but the underlying conclusion of Richard Hemstein and Charles Murray's (1994) The Bell Curve is an implied acceptance of

the inevitability of White superiority. Many affirmative action programs contain the same flaw at their core-that is, the basic premise that Blacks as a class cannot succeed

in an equal opportunity society. The argument is that they have been too wounded,

have been oppressed too long, and are too far behind to catch up in only a generation

or two.

The biggest problem with this argument, that Blacks cannot succeed, is the danger

that it can become, although untrue, a self-fulfilling prophecy. Ajournalist friend sees

that happening in his own family. Recently, he told of a trip home to Detroit where he

found his young nephews, all bright eyed and eager but trapped in homes in which the adults call each other "nigger" as they sit drinking beer, smoking marijuana, and going

nowhere. He said, "these are the boys who in 10 or 15 years will be stabbing you and me in the back." He is angry because he sees his relatives acting in a way that actually reinforces the worst racial stereotypes.

Contrast this with the story of Jaime Escalante, the mathematics teacher in an

inner-city Los Angeles school who challenged his students to greatness and succeeded. As the story is dramatized in the movie Stand and Deliver, the wonderful potential that is latent and waiting to be tapped, the wonderful potential that. the journalist sees

in his nephews, justifies the kind of affirmative equal opportunity that many expected

with the passage of the Civil Rights Act of 1964. Similarly, a young woman of Native American descent, who had gone to high school on the reservation, when offered a minority scholarship to college turned it down because it was not merit based. Eventually, she got that merit scholarship. Her principles may have cost her some time and some money, but her self-esteem benefited (W. B. Allen [chairman of the U.S. Commision on Civil Rights], personal communication, February 11, 1996). Stories like these are not uncommon.

What Is Equality?

What does equality require? Does it require quotas and timetables? Or is equal opportunity enough? In Democracy in America, Alexis de Tocqueville (1966) dis- cusses these two differing views of equality and concludes that an insistence on equality of results will lead, inevitably, to tyranny because that kind of equality saps liberty. He also points out that an equal opportunity society puts obstacles in the way of everyone. Thus even the children of the wealthy have a disadvantage: Their privilege makes them softer than their poorer competitors. What is important for success in America, according to Tocqueville, is a "manly passion [for excellence] which rouses in all men a desire to be strong and respected. This passion tends to elevate the little man to the rank of the great" (p. 57).

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232 PPMR / March 1997

Equality of opportunity is consistent with the Declaration of Independence. The

phrase "all men are created equal" is a frontal attack on the principle of privilege. In

place of privilege, the founders envisioned a society of merit. As the author of the

Declaration himself put it in a letter to John Adams (1813):

For I agree with you that there is a natural aristocracy among men. The grounds of this are virtue and talents.... The natural aristocracy I consider as the most precious gift of nature.... May we not even say that that form of government is the best which provides the most effectually for a pure selection of these natural aristoi in the offices of government? (Cappon, 1959, p. 388)

Now, what does this mean? It means that you can come from the "wrong" side of

the tracks and not face legal discrimination. It does not mean you cannot face other

kinds of discrimination-because a free society must allow for advancement on merit.

The whole argument of natural rights on which the Declaration is based rests on merit.

If one does not believe in natural rights as the basis for government, then one is left

with raw power, the power of whatever privileged class is in control. The exchange of

natural rights for pure power is a bad bargain for women and minorities.

Affirmative action is an issue that is bubbling in the electorate because it is now

perceived as unfair by men and women, Black and White alike. And because affirm-

ative action as it is now practiced is at odds with the principles of the Declaration of

Independence as well as the 14th Amendment and the Civil Rights Act, it will not long

be accepted by ordinary Americans. No matter how hard politicians run from it, this

issue is not going away. The Declaration of Independence, for example, does not say

that because of past discrimination some are more equal than others. It does not say

that for some the pursuit of happiness needs to be constrained because of past

privileges; no, it insists, boldly, that here in America, we are all equal under the law.

The mainstream civil rights movement that culminated in the Civil Rights Act of

1964 was a fundamentally democratic movement. It called on Americans to live up to

the principles of the Declaration of Independence. But almost immediately after

passing a law that forbade discrimination, quotas, and preferences, the Equal Employ-

ment Opportunity Commission (EEOC) proceeded to "encourage" race-based prefer-

ences, quotas, and reverse discrimination. The courts upheld the EEOC as following the logical intent of the law. The problem with this is the basic assumption that Blacks

could not make it in an equal opportunity world. The principle of equal opportunity was never even tried.

How Equal Opportunity Became the Search for Equal Results

The movement toward results-based affirmative action law was predictable. Begin- ning in 1961, the Kennedy administration pursued a policy of race-conscious affirm-

ative action, pressuring government contractors to hire members of favored minority groups. Until 1965, this pressure was moderate. After 1965 pressure became so strong that it basically amounted to coercion. Not everyone supporting the civil rights movement shared Martin Luther King's dream of a color-blind society, and the Kennedy administration and later administrations actually rejected this view in their

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Jeffrey / RETHINKING AFFIRMATIVE ACTION 233

policies. One spokesman for the new view expressed it this way to a congressional

committee in 1961:

I am sick and tired of people saying they are color-blind so they do not have to give up any information ... I think the time has come where the problem is so great that being color-blind for an official of government is no longer a virtue. What we need to be is positively color conscious and go to work on this job of color and know what we are doing. (Belz, 1991, p. 20)

But after the passage of the Civil Rights Act, even a sloppy reading of Title VII had

to be interpreted as forbidding race-based programs, and so the Comptroller General

Elmer B. Staats issued an opinion that the government's contracting regulations, the

so-called Philadelphia Plan, were in violation of the Civil Rights Act. This plan

embraced the new vision of affirmative action, one that was directed at helping

minorities achieve what they would have achieved if there had never been discrimi-

nation. It advocated the disparate impact concept, which demanded race-conscious

affirmative action and the removal of standards and job qualifications that had a

disproportionately negative effect on protected minorities. Begun in the Department

of Labor, the program required contractors to develop specific goals for hiring minorities (Belz, 1991, pp. 30-48).

The Nixon administration insisted that there was no intention to cause discrimina-

tion against any qualified individual because of race. Instead, they argued, they were

permitted to go beyond Title VII to fulfill the spirit of the law. They plainly made a political decision, contrary to congressional mandates, that the color-blind, equal

opportunity principle would be insufficient to secure civil rights and achieve racial

equality. Congressional efforts to eliminate the Philadelphia Plan subsequently failed

(Belz, 1991, pp. 36-41).

Fraud, Cronyism, and Abuse

It should not go unremarked that at least some of the support for affirmative action

by the various presidential administrations, Republican and Democratic, was a desire

to have pots of money to reward loyal political supporters. This is called political pork,

and it is the same on the local, state, and federal level whenever taxpayer money is used for cronyism and favoritism (Belz, 1991).

Fraud is a big problem because it cannot be prosecuted. To do so, the courts would

have to define the term minority. This has not been done and is not something any American court is likely to do because to do so would be to cross the line into

definitions of racial purity a la the old segregation and even the Nuremberg Laws. Law Professor Christo Lassiter (1996) says more is involved:

Government programs stemming from liberal compassion are not tailored to minimize fraud.... It is hard to credit this happenstance as sloppy thinking, since it is repeated ad infinitwn.... One need look no further than the cases which came before the Court in the 1994-95 term, to see examples of liberal programs designed without a care to minimize fraud. (p. 444)

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234 PPMR / March 1997

The Prior Tire Case in Atlanta, Georgia

The minority set-aside program of Richmond, Virginia, was successfully chal-

lenged in the Supreme Court case of City of Richmond v. Croson (1989). Congress

then passed the Civil Rights Restoration Act designed to protect minority set-aside programs. Nevertheless, a similar case to Croson is being brought by Leon Goldstein,

president of Prior Tire Company in Atlanta. He is challenging an affirmative action

policy of the city of Atlanta's school board that allows the board to subtract 15% from

minority bids. The winning contractor is then paid according to his original bid.

Without a challenge to this unfair practice, Prior Tire would be frozen out of doing

business with the school board, but more important to Mr. Goldstein, once competitive

companies like Prior drop out, costs inevitably rise. This is money going to contractors

in the form of unearned profits, money, he says, that could go to teachers' salaries or books.

Mr. Goldstein's business was founded by his father, Abe Goldstein. It can survive without government contracts, but the Goldsteins are activists. Abe Goldstein was a

prominent civil rights advocate. His original program to hire minorities was well

known, and today the Anti-Defamation League gives an annual award for human rights

named after Abe Goldstein. Mr. Goldstein says he will take his case all the way to the

Supreme Court because of the human rights principle involved-that is, equality before the law.

Prior Tire's self-imposed affirmative action program actually worked and actually

benefited those individuals who had been damaged by segregation, real working people. There is little evidence Atlanta's set-aside program works., and in fact, there

are serious questions associated with these kinds of state and federal programs,

questions of fraud and abuse.1

Future Trends in Affirmative Action

Signs of future changes to come include the recent Supreme Court decision of

Adarand Constructors, Inc. v. Pena (1995) and the California Civil Rights Initiative (CCRI). The ruling of Adarand now subjects all federal affirmative action programs to strict scrutiny by the courts and mandates that they be narrowly tailored to pass

judicial muster. As a direct result of Adarand the Department of Justice has initiated a review of all federal affirmative action programs. It is conducting this review to verify

that each program meets the new requirements issued by Adarand. The president has

conducted his own review of federal affirmative action programs.

The CCRI, which calls for an end to all race- and gender-based affirmative action programs, is on the ballot in the state of California. If the CCRI passes, it may well ignite the move in Congress to pass a law, similar to CCRI, Canady-Dole, which was introduced in the 104th Congress (H.R. 2128). Furthermore, laws pending in other states, such as in Georgia and Texas, are gaining support. Unequal treatment appears to be ending.

What can be put in the place of affirmative action? This is the question that Congressman J. C. Watts and his Minority Issues Taskforce in the U.S. House are trying to answer. Their solution is various training and empowerment programs aimed

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Jeffrey / RETHINKING AFFIRMATIVE ACrION 235

at the inner city. This cannot be a substitute for eliminating discrimination. Just as modem affirmative action is contrary to the Declaration of Independence, so also is

discrimination. Illegal discrimination should be seriously and resolutely opposed and prosecuted.

Conclusions

The problem with group rights as opposed to individual rights can be seen through representation. When one represents a group, one represents the passions and interests

of the group. On the other hand, representing a wide assortment of individuals requires

a search for a common good that transcends any one faction.2 When interest-group spokesmen speak for their groups, they inevitably flatter the passions of the group and

become demagogues. Statesmen, on the other hand, must plead for reason and call on their supporters to understand the need to promote a common good. As James Madison makes clear in Federalist 10 and 51 (Cooke, 1961), a nation of factions cannot be unified on any other basis than the common good. The affirmative action society, if allowed to persist, could lead us further down the road to balkanization, schism, and eventually civil war, the object of which would be, this time, not liberating slaves but enslaving freemen. This would be the cost of turning the principles of the Declaration

of Independence on their head.3 Thus it is imperative that Americans of good will, Democrats and Republicans,

liberals and conservatives, put their minds to solving this problem, a problem created by slavery but perpetuated by government policies like Jim Crow and modern affirmative action. If we keep our eyes on the principles of the Declaration, it may be possible to find solutions that guarantee the right to life, liberty, and the pursuit of happiness for all, regardless of race, gender, or ethnicity.

Notes

1. Research on Prior lire was conducted at the offices of the Southeastem Legal Foundation, which is handling Mr. Goldstein's case. I also had a chance to interview Mr. Goldstein on the telephone, on January

25, 1996, and in person, on January 26, 1996, when he attended the first reading of this paper at an academic

forum at Kennesaw State College. 2. For a good, general discussion of what he calls the problems of tribalism created by the current

approach to affirmative action, see Lassiter (1996). 3. For a discussion of the problems associated with celebrating diversity over unity, see especially

Schlesinger (1990).

References

Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995). Affirmative action review: Report to the president. (1996). Washington, DC: U.S. Government Printing

Office.

Belz, H. (1991). Equality transformed: A quarter-century of affirmative action. New Brunswick, NJ: Transaction.

Burleigh, N. (1995, December/1996, January). Was it worth it? George, pp. 252-253. Cappon, L. J. (Ed.). (1959). The Adams-Jefferson Letters. Chapel Hill: University of North Carolina Press. City of Richmond v. Croson, 488 U.S. 469 (1989).

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236 PPMR / March 1997

Cooke, J. E. (1961). The Federalist. Middletown, CT: Wesleyan University Press.

Doggett, J. (1996, July 8). Justice Thomas and Black opinion. The Washington 7imes, p. A19.

Frank, B. (1996, January 23). Dear colleague letter. (The Honorable Barney Frank, 2210 Rayburn House Office Bldg., Washington, DC 20515)

Hernandez, G. H. (1994, April 23). "Gotcha Journalism" takes no prisioners. Editor and Publisher

Magazine, pp. 100-102.

Hernstein, R., & Murray, C. (1994). The bell curve: Intelligence and class structure in American life. New

York: Free Press.

Jeffrey, R. (1995). John C. Calhoun's critique of American constitutionalism: The original argument for

multicultural democracy. Unpublished manuscript. Lassiter, C. (1996). The new race cases and the politics of public policy. The Journal of Law & Politics, 12,

411-458.

Mansfield, H. C. (1991). America's constitutional soul. Baltimore: Johns Hopkins University Press.

Riled at Rutgers. (1995, February 13). The Wall Street Journal, p. A14.

Schlesinger, Arthur M., Jr. (1990). The disuniting of America: Reflections on a multicultural society. New

York: W. W. Norton.

Steele, S. (1990). The content of our character. New York: St. Martin's.

Tocqueville, A. de. (1966). Democracy in America (J. P. Mayer, Ed., G. Lawrence, Trans.). New York:

Harper & Row.

Christina F. Jeffrey is an associate professor of political science and public administra- tion at Kennesaw State University and is the immediate past president of the Georgia

chapter of the American Society for Public Administration (ASPA) and a member of

ASPA's Policy Issues Committee. She holds M.A. and Ph.D. degrees from the University

of Alabama in Tuscaloosa.

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