READING THREE - Opinion Essay

RETREAT FROM EQUALITY TODAY?

By Tim Wise and Tania Tetlow

Tim Wise is Director of the Youth Antiprejudice Project and author of the Truth about Affirmative Action and "Reverse Discrimination."

Tania Tetlow holds a Juris Doctorate from Harvard Law School.

The Supreme Court's recent decisions on minority rights is cloaked in the same rhetoric of common good and beneficence. The experience of Plessy warns us that if the Court's direction continues, African Americans may once again find themselves denied "equal protection" under the law. To understand how the Court has come full circle, we first must return to the debacle of Brown.

Attempts to enforce Brown sparked tremendous controversy throughout the Southern states subject to the decision's mandate. In 1958, confronted with the Arkansas governor's refusal to desegregate the public schools in Little Rock, the Court issued its opinion in Cooper v. Aaron, ordering the immediate desegregation of the city's high school--a decision ultimately enforced with the help of federal troops sent by President Eisenhower.

As the Supreme Court battled the entrenched and zealously guarded structures of racism, it became acutely aware of the limits of its own power. In Cooper, the Court faced the outright defiance of Arkansas' governor, who claimed the right to enforce his own interpretation of the Constitution. The Court issued a unanimous opinion that ordered the school be integrated immediately. The Court's order also reminded state officials of the "basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution."

The very bravado of the Court marked its powerlessness; the Court risked its legitimacy by issuing orders it knew might be ignored, but the demands of justice allowed them no other choice:

"The principles announced in [Brown] and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth."

Massive Resistance

The state obedience demanded by the Court would not come about without the threat of federal force. As the Louisiana legislature debated school desegregation, Governor Earl Long illustrated the dilemma when he asked segregationist Leander Perez: "Leander, what you gonna do now that the Feds got the A-bomb?" The use of federal force to ensure desegregation -- although always a possibility -- was rarely more than an idle threat after Little Rock. Tentative political leadership at the national level guaranteed that delay tactics would usually go unchallenged.

Presidents Eisenhower and Kennedy were forced to balance the political power of Southern Congressional leaders against their own duties to enforce the law of the land. This balancing act resulted in considerably slower progress than the supporters of desegregation would have liked. The Supreme Court had advised that desegregation should proceed "with all deliberate speed" -- an unclear concept which allowed substantial delay on the part of Southern officials seeking to keep their schools separate.

Black leaders in the South understood that cracking the structure of Jim Crow would take more than abstract legal opinions and good intentions on the part of the courts. As such, they refined a number of organizing tactics throughout the 1950's that had first emerged years before; protests and civil disobedience among them. In 1955, the young Montgomery minister, Martin Luther King, Jr., emerged as an articulate and morally compelling leader of the growing non-violent social movement.

With extraordinary organization, determination, and the labor of thousands, the civil rights movement thrust the images of American racism onto the international stage and shook the collective conscience of the nation's citizens. The stark contrast between the promise of American democracy and the reality of violence, hatred and apartheid was borne out in images of African Americans walking miles to work rather than ride segregated buses; of well-dressed black students sitting at segregated lunch counters, enduring the vicious attacks of angry bigots; of freedom riders writing wills before boarding integrated buses to travel through the South. Similar to Reconstruction, civil rights gains were often in response to Southern violence. In the wake of civil rights activity in Birmingham -- activity met with water cannons and police dogs ordered by Sheriff Bull Conner -- President Johnson was able to push the Civil Rights Act of 1964 through a Congress previously paralyzed by Southern filibusters. The first meaningful civil rights legislation of the twentieth century, the Act outlawed segregation in public accommodations as well as discrimination on the basis of race or gender in the workplace.

AFFIRMATIVE ACTION: THE BEGINNING

In 1965, Johnson secured passage of the Voting Rights Act, assisted in part by public outrage in the wake of police violence against marchers in Selma, Alabama. As a result of the rights legislation, black men and women began to fill the voter rolls. The Supreme Court waited until the end of the 1960's to strike down laws banning interracial marriage, and, in the most controversial civil rights action of the period, Congress passed the Fair Housing Act in 1968, outlawing private discrimination in rental and sales of housing.

By the beginning of the 1970's, attempts at school desegregation were proving more frustrating than expected. In response to continued de facto segregation, the Supreme Court permitted the use of court-ordered cross-district busing in 1971. Unfortunately, busing ignored the complexity of the problem, which was rooted in residential segregation: segregation maintained by active forms of housing discrimination, even after the passage of the Fair Housing Act. The failure of many busing schemes led the Court to reverse a plan for cross-county desegregation in Detroit in 1974, effectively dooming meaningful integration efforts.

The civil rights legislation passed in the 1960's, despite its far-reaching scope, did not call for remedies such as affirmative action to expand opportunities for African Americans; rather, it envisioned remedies only for direct, observable acts of discrimination perpetrated against identifiable individuals. Nonetheless, it soon became apparent that discrimination and inequality were maintained through subtle practices as well, such as unnecessary job qualifications, seniority systems, and standardized testing--all of which could perpetuate the effects of past discrimination.

President Johnson understood the need for affirmative efforts at black advancement fairly early. In 1965, he explained:

Freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, do as you desire, and choose the leaders you please. You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying 'you are free to compete with all the others,' and still justly believe you have been completely fair. Thus, it is not enough to open the gates of opportunity.

Keeping with this notion, Johnson issued two executive orders requiring companies that received government contracts to take "affirmative action" to increase the numbers of minorities and women in the workforce. Unfortunately, due to a lack of enforcement mechanisms for ensuring affirmative action, compliance with recruitment goals was largely unsuccessful. From 1964 to 1971, very few employers or unions made progress in hiring or promoting African Americans.

In 1971 the Supreme Court gave a boost to affirmative action with its decision in Griggs v. Duke Power Co. In Griggs, the Court held that job qualification requirements which disproportionately exclude minority job applicants (such as school degree or a particular aptitude test score) must be shown by the employer to clearly relate to one's ability to perform the job in question. Much evidence was presented to the Court which indicated that many industrial aptitude tests were irrelevant to the ability to perform a particular job, but had consistently excluded non-whites from entry-level positions. The Court strengthened affirmative action by allowing plaintiffs to prove discrimination under a "disparate impact" test -- that the job qualification criteria had an unfairly excluded minorities. Individuals no longer had to prove that employers were motivated by bias; they simply had to establish that unnecessary job qualifications were excluding minorities. Griggs placed the burden of proof on employers to explain why their workforces remained disproportionately white and male.

RETREAT FROM AFFIRMATIVE ACTION

In 1979 affirmative action's progress began to slow. That year, the Supreme Court struck down a program at the medical school of the University of California-Davis which had set aside 16 of 100 slots in the first-year class for African Americans. In the Bakke decision the Court took the first steps toward excluding the use of racial categories in remedies for problems caused by race, e.g. discrimination. As in the Plessy decision, the Court's retreat from equality was not sudden and dramatic, but rather piecemeal.

Soon after Bakke, President Ronald Reagan announced that his administration would no longer enforce federal affirmative action rules, and that there would be little pursuit of "disparate impact" cases by the Equal Employment Opportunity Commission. As a result of this hands-off attitude, civil rights enforcement slackened: the number of discrimination suits filed by the EEOC during the Reagan years fell by 25%, and the number of cases settled favorably fell from one-third to just under 15%. Reagan's conservative appointments to the Supreme Court shifted the Court dramatically to the right, and set it on a collision course with affirmative action.

Supreme Court's decisions throughout the 1980's continued to erode affirmative action, including a 1989 ruling which overturned the Court's decision in Griggs. In that particular case, the Court decided that employers would no longer have to show that job qualification requirements were absolutely necessary for job performance, even if those requirements tended to exclude minority job applicants. Now the Court placed the burden of proof on the victims of discriminatory job qualifications. Congress was so outraged at this weakening of affirmative action that it passed the 1991 Civil Rights Act, which restored the disparate impact standards of the Griggs decision.

The composition of the Supreme Court continued to change, culminating is a solid majority against most affirmative action policies by 1993. In the Summer of 1995, the Court issued the most profound setback for affirmative action to date, holding that programs designed to remedy discrimination must be "narrowly tailored" to address specific, direct instances of job bias. Along with its reversals on affirmative action, the Court also threw into doubt a number of race-specific remedies for past and present discrimination, including school desegregation and electoral redistricting.

Under pressure from the Justice Department enforcing the Voting Rights Act, Southern states with a history of excluding blacks from voting were required to draw new district lines to maximize minority political representation. However, in recent decisions, the Supreme Court struck down redistricting plans which sought to increase the likelihood that black candidates could be elected. The Court has held that the "bizarre shape" of many of the minority-majority districts indicates they were crafted only as a way to guarantee black electoral victories, and as such are tantamount to "political apartheid." Through this ruling the Court has essentially guaranteed the collapse of minority-majority districts throughout the South.

Today affirmative action is under attack by those who argue that anti-discrimination remedies violate "equal rights" by creating "special rights" for minorities. Over 100 years ago the Supreme Court dismantled black rights using the same language. Then the Court argued that anti-discrimination legislation sought to make blacks the "special favorite of the laws." History instructs us that the most insidious attempts to deny equality are carried out under the pretense of restoring equality.

IS RACIAL DISCRIMINATION STILL A PROBLEM?

The Court -- mirroring opinions in the larger society -- has presumed that given formal equality, everyone can compete fairly for jobs and other social amenities. Just as the Plessy decision was based on the unspoken premise that blacks were inferior, the Court's recent decisions are predicated on the tacit notion that whites no longer harbor secret prejudices, hence minorities need no special protections. But recent studies indicate that white Americans retain deeply imbedded prejudices that may color their judgment in hiring, promotions, and other decisions that affect minorities:

• According to a 1991 poll, between half and three-quarters of all whites think blacks are less intelligent, more violent, lazier than whites and would rather live on welfare than work for a living.
• One in four whites believe neighborhoods should be segregated and 41% feel it is appropriate for a white property owner to discriminate against blacks seeking to buy a home or rent an apartment.
• Six in ten whites agree with the statement: "Blacks shouldn't push themselves where they aren't wanted."

• The Glass Ceiling Commission, established by President Bush and Senator Bob Dole, found that white men, who comprise only 43% of the nation's workforce, hold over 95% of senior management positions and 80% of tenured professorships due to an "ongoing pattern of injustice." The study found "serious barriers to [minority and female] advancement remain," including "persistent stereotyping, erroneous beliefs that no qualified women or minorities are out there, and plain old fear of change."
• In 1991, the Urban Institute sent equally qualified "testers" (some white, others black), to apply for entry-level jobs and found "widespread and pervasive discrimination" against young black males. Blacks were three times as likely to be rejected for employment as their white counterparts, and approximately one in five African American job-seekers in the study experienced some form of discrimination.
• A 1990 study of Louisiana's contracting and construction industries found that white contractors admitted they wouldn't subcontract with black firms unless required to do so by law, because they perceived the quality of minority work to be inferior, even though they had never received shoddy workmanship from black contractors.
• Even black employees of the federal government -- those most protected by affirmative action and civil rights laws -- face continuing job bias. A 1994 study found that even when African American workers have equivalent educations, seniority and performance records, they are fired at nearly twice the rate of their white counterparts.

In contrast to the referee theory of government is the notion that government has a right and obligation to remedy the unequal opportunities caused by past discrimination and the free market. This view holds that government exists to serve the greater public good, and to prevent those with greater power and resources from exploiting those without such advantages.

The Supreme Court today, as did the Plessy Court, implicitly subscribes to the "government as referee" viewpoint. They want the government out of the business of correcting discriminatory practices and a return to the status quo. They ignore the fact that the status quo cements pre-existing racial advantages that were a consequence of past government laws and policies.

The Supreme Court may oppose using group classifications to remedy problems, but it is groups of people who suffer discrimination, and it is groups of people who continue to benefit from discrimination. We share two conflicting and powerful ideologies in America: that which calls us individuals in our identities and in the treatment we deserve, and that which calls us members of societies, bearers of cultures, descendants of peoples. Thus we continue to struggle over the very definition of equality even as we struggle to attain it.