The issue of reverse discrimination first reached the nation’s highest court in the 1970s, when a student with good grades named Allan Bakke accused a University of California medical school of twice denying him admission because he was white.
Strict racial quotas were unconstitutional, the court said – affirmative action was not. But that ruling far from decided what many considered the big-picture issue: does protecting minorities discriminate against the majority?
More than 30 years, and scores of lawsuits later, the question remains unanswered. Meanwhile, more Americans came to believe that affirmation action is no longer necessary, and that instead of leveling the playfield for minorities, it unfairly punishes whites.
Last week, the Supreme Court heard arguments in a case filed by white firefighters who claimed they were denied promotion because of the color of their skin.
“The laws that Congress wrote are clear – everyone is protected from racial discrimination,” said Roger Clegg, president of the Center for Equal Opportunity, a conservative think tank that advocates eliminating race and ethnic considerations. “Not just blacks, but whites. Not just Latinos, but whites.”
Those who favor affirmative action say race divisions still exist in this country, 40 years after the civil rights movement.
“Race so permeates society that you can’t ignore it,” said Dennis Parker, director of the American Civil Liberties Union’s Racial Justice Project.
Several states have recently faced legal battles waged by whites claiming they were unfairly treated in favor of protecting and promoting blacks and Hispanics.
Earlier this month in South Carolina, the U.S. Equal Employment Opportunity Commission sued a historically black college on behalf of three white faculty members who complained they were forced from or denied jobs because of their race.
Simultaneously, federal officials said they had reached a settlement agreement, with Benedict College paying $55,000 to each instructor, including an art teacher who said she was denied promotion in favor of a black professor. The institution denied the accusations.
Last week, a white woman in Texas filed a federal lawsuit against an assisted-living center, contending she was discriminated against and harassed by Hispanics because she didn’t speak Spanish.
And in Florida, two transportation companies sued Broward County over efforts to steer public contracts to minority-owned businesses. The firms, which had provided car service for the handicapped and the elderly, claimed they were paid lower fees than other contractors because they didn’t comply with affirmative action requirements.
Affirmative action – policies designed to promote and protect groups previously and currently denied equal standing – originated with Title VII of the Civil Rights Act. Broadly speaking, it outlaws bias toward race, creed, color or national origin in school admissions, voting rights, employment and government contracting.
Sometimes those policies have set aside jobs, college admissions and government contracts for minority applicants, students and firms.
“Quotas do not end discrimination. They are discrimination,” Clegg said. “The law makes clear that race, ethnicity and sex are not to be part of who gets a government contract or who gets into a university or where someone goes to school.”
But there is wide disagreement on whether case law is clear at all.
In the Bakke case, the Supreme Court ruled 5 to 4 that universities could take race and ethnicity into account when deciding student admissions. But using rigid racial quotas to increase minorities on campus was unconstitutional, justices said.
In 1987, the high court said temporary and “narrowly tailored” quota systems were allowed. The case stemmed from an affirmative action plan that imposed a promotion standard of “one black for one white” in the Alabama state police ranks. The quota was justified, justices ruled, because of the department’s “long and shamefulrecord of delay and resistance” to black employment opportunities.
Twenty years later, a more conservative court declared that public school systems cannot try to achieve or maintain integration based on explicit race rules. In a 5-to-4 opinion, Chief Justice John Roberts wrote “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” At issue in the case were programs in Seattle and Louisville, Ky., that tried to maintain racial diversity by limiting transfers and admissions.
“The Supreme Court case law isn’t clear. There aren’t bright lines and clear guidance,” said attorney Deborah Archer, director of the Racial Justice Project at New York Law School. “It’s very difficult to extract a rule from those cases that can be applied across the board.”
Instead, “they have tended to be concerned with a specific aspect, and the decisions are made on case-by-case basis,” said Archer, whose group filed a friend-of-the-court brief for the city of New Haven, Conn., the defendant in last week’s Supreme Court hearing.
In its first consideration of race under the presidency of Barack Obama, a divided court heard arguments from white firemen claiming the city discriminated against them by jettisoning the results of a promotion exam that no blacks had passed.
The city contends it got rid of the test results because it was concerned that no African-American firefighters, and only two Hispanics, received passing scores. Officials said they worried the test was somehow flawed because it had such a disproportionate effect on minorities.
Justice Anthony Kennedy, as is common on social issues, appeared to have the swing vote. He questioned why the city didn’t weigh the test against a clear standard before deciding it was deficient and setting it aside.
That is the key legal question – can the test and its results legally be thrown out after the fact?
“Suppose an employer looked out the window and saw a line of Hispanics applying for jobs?” asked attorney Michael Rosman of the Center for Individual Rights, another group opposing affirmative action. “Suppose he told his secretary to cancel the interviews because he didn’t like who was lined up outside? No one would argue that wasn’t racial discrimination.”
Others say that scenario misses the point.
“We like to believe there is an equal playing field. In fact, there isn’t,” said Parker of the ACLU. “In this country, whites are still advantaged in many ways. You can say we shouldn’t take race into consideration, but that just continues the advantage.”
The deep divide over who needs help – and at what price – mirrors the equally deep racial divisions that still exist, Parker said.
“Clearly there have been changes. We have a black president. But if I were to go into any office on Wall Street, I think it would be hard to deny that white people aren’t getting jobs. You wouldn’t see a lot of black people and women,” he said.