Affirmative Action: For How Much Longer?

An interesting opinion piece appeared in Monday’s New York Times on affirmative action, and how much longer it can justifiably exist. 

First, some background

The term and policy of affirmative action originated in the 1960s.  Mandated by President John F. Kennedy in March 1961 by executive order, the policy mandated

“affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”

Several years later, President Lyndon B. Johnson further elaborated on the scope and need for an affirmative action policy.

Nothing is more freighted with meaning for our own destiny than the revolution of the Negro American…In far too many ways American Negroes have been another nation: deprived of freedom, crippled by hatred, the doors of opportunity closed to hope…But freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair…This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result…To this end equal opportunity is essential, but not enough, not enough.

Since then, the policy of affirmative action has been subject to numerous court cases, all collectively seeking to achieve a balance of diversity and equality without sacrificing the rights of others.   The architects of affirmative action assumed that it was a temporary measure to last, perhaps, for a generation.   Recent cases seem to insist on its continued need (though narrowed), while also insisting on its end.

Retired Supreme Court Justice Sandra Day O’Connor, writing the majority opinion for Grutter v. Bollinger in the 2003 University of Michigan Law School, struck a cautionary tone on the future need of affirmative action:

We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Palmore v. Sidoti, 466 U. S. 429, 432 (1984). Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racialpreferences would offend this fundamentalequal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all “race-conscious programs must have reasonable durational limits.” Brief for Respondents Bollinger et al. 32.

Ross Douthat Opinion Piece

Writing in Monday’s New York Times, Ross Douthat references Justice O’Connor’s opinion to answer the question, “when will affirmative action end?” within the context of Judge Sonia Sotomayor eventual confirmation to the United States Supreme Court.

“It is firmly my hope, as it was expressed by Justice O’Connor,” she told Senator Kohl, “that in 25 years, race in our society won’t be needed to be considered in any situation.”

But O’Connor didn’t hope; she expected. And Sotomayor’s record suggests that there’s a considerable difference between these postures — that for the nominee, as for most liberal jurists, as long as racial disparities persist, so too must racial preferences.

This is the big question underlying both the “wise Latina” contretemps and the controversy surrounding Sotomayor’s role in Ricci v. DeStefano. Whither affirmative action in an age of America’s first black president? Will it be gradually phased out, as the Supreme Court’s conservatives seem to prefer? Or will it endure well into this century and beyond?

To affirmative action’s defenders, Sotomayor’s confirmation hearings have been an advertisement for the latter course. Here you have a Hispanic woman being grilled by a collection of senators who embody, quite literally, the white male power structure. Her chief Republican interlocutor, Jeff Sessions of Alabama, even has a history of racially charged remarks.

But the senators are yesterday’s men. The America of Jefferson Beauregard Sessions III is swiftly giving way to the America of Sonia Maria Sotomayor and Barack Hussein Obama.

In closing, Douthat clearly justifies affirmative action as a temporary and necessary response to the vestiges of slavery and Jim Crow. However, he also plainly, without reservation, argues for its end.

Affirmative action has always been understandable, but never ideal. It congratulates its practitioners on their virtue, condescends to its beneficiaries, and corrodes the racial attitudes of its victims.

All of this could be defended as a temporary experiment. But if affirmative action persists far into the American future, that experiment will have failed — and we will all have been corrupted by it.

In Your Opinion

Do you think affirmative action should be a temporary measure, or a permanent fix?

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