Michael Lind's "The liberal case against race-based affirmative action,"* fails to reflect a comprehension of what race-based affirmative action is, and as a consequence, he, like other critics, has not succeeded in making a case against it. Representing himself as a liberal or invoking the spirit of Bayard Rustin does not absolve him of the responsibility to present the facts either.
Yes, the historic speech given by President Lyndon Baines Johnson at Howard University in 1965 is often used as a justification for affirmative action. If one reads "Why We Can't Wait," one can easily discern that the quote was derived from, if not lifted from Dr. Martin Luther King's seminal "manifesto" for the movement. It was clear that Dr. King was not only calling for some form of affirmative action for the "Negro," but for more - a Marshall Plan to restore him to his rightful place in America. That Dr. King also rightly saw the linkage between class and race does not support any argument that race-based affirmative action to overcome the centuries of discrimination was not necessary or that class trumps race in the order of priorities.
Executive Order 11246, signed by President Lyndon Johnson in 1965 (three months after his historic speech at Howard University) contains two fundamental mandates: nondiscrimination and affirmative action. The Order states specifically:
The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.
There is an inextricable relationship between discrimination and affirmative action. The Department of Labor, which enforces the order, conducts compliance reviews of federal contractors and in doing so, looks for evidence of discriminatory employment practices as well as "underutilization," where minorities and women in the workplace are compared with qualified minorities and women in the contractor's reasonable recruitment area to determine if the contractor needs to take affirmative action, i.e., recruitment and outreach, to increase and diversify the pool from which qualified individuals may be selected. Prior to the Order, those who were qualified women or minorities could be and often were not given the opportunity to apply for or be selected for the jobs that they were prepared for or could be trained for. The operative word is "opportunity." Affirmative action means giving everyone who is qualified an opportunity to compete.
In Johnson v. Transportation Agency, the Supreme Court permitted gender, and presumably race, to be taken into account by an employer when there was a "manifest imbalance." In that case the employer had had no women road dispatchers and therefore, pursuant to its affirmative action program, it was allowed to select a woman who was qualified to serve as a dispatcher even though a male employee received a higher score on the qualifying exam. The Court has also ruled in cases of contracting and higher education, but has imposed strict limitations on the use of race in selections or admissions. Yes, the diversity rationale was used in Bakke and later in the Grutter case against the University of Michigan, but the Court has made clear that race could be only one of a number of factors and that a more holistic approach was needed than the use of race alone.
Where is the evidence of so-called race-based affirmative action that is rife with quotas? When I see such impassioned briefs calling for fairness for the white male I am taken aback, because I see no evidence that white males have been so terribly wronged. They continue to dominate the ranks of corporate CEOs, presidents of colleges and universities, the United States Congress and even the Supreme Court. What harm have they suffered? More importantly, where is the evidence that race-based affirmative action has mutated and taken the form of quotas?
The Johnson Executive Order, which I enforced in the 1990s, remains in effect, and in 2000 we made clear in regulations that quotas were not allowed. Only where there is evidence of repeated instances of discrimination are courts permitted to impose quotas. Since the Supreme Court has, ironically, applied the highest form of scrutiny for efforts to remedy past discrimination against the descendants of slaves, government-based quotas are virtually impossible to impose. So, where is your evidence? During my tenure at Labor a study was conducted by Professor Al Blumrosen to determine the extent of reverse discrimination as reflected by charges at the Equal Employment Opportunity Commission. Professor Blumrosen found that there was a miniscule number of charges filed and even fewer resulted in findings of discrimination.
The affirmative action program that I know and enforced is one that a true liberal could support. It is responsible, in part, for increasing the ranks of the black middle class and has benefited white women in ways that could not have been foreseen in 1967 when gender was added to the order. Beneficiaries of affirmative action include such luminaries as General Colin Powell, Secretary of State Condoleezza Rice, and Supreme Court Justice Sotomayor. All were qualified for the positions they held and were selected despite racial and gender stereotypes that, in years past, would have caused them to be excluded. They were given an opportunity to excel. Despite such progress, it is too soon to end it after centuries of discrimination against both minorities and women, and I include Hispanics and Asians in this group as well.
Affirmative action has been ill-served by writers who do not take the time to comprehend how it truly works. It has also been used as a wedge issue, stoking fear and hatred by those who seek scapegoats instead of solutions. We can do better than this and the nation's historically disadvantaged deserve more than ill-studied rants against phantoms.
*See Michael Lind's article at: http://www.salon.com/news/feature/2010/08/24/affirmative_action/index.html
Shirley J. Wilcher
American Association for Affirmative Action