Abstract
This essay surveys the origins and development of race-conscious affirmative action in the United States. It tracks opposition to affirmative action and the ascendancy of neoliberal ideology in American law and policy. All important legal and policy changes concerning affirmative action have their roots in conflict over the meaning of constitutional equality. It is not surprising, therefore, that the neoliberal account of racial equality would be fought on those grounds as well. The curious aspect of this conflict is its oddly dehistoricized texture. Although the state is deeply implicated in the racial inequality we still observe today, the state is largely prohibited from taking that role into account in fashioning remedies if it departs from a stance of racial objectivity. Neoliberalism has succeeded because its proponents have been able to fix the current deeply racialized and deeply unequal reality as the neutral baseline. Action by the state to move from this baseline thus requires a robust justification that does not, itself, seem racially based.
Introduction
The congeries of policy in the United States that have come to be grouped under the heading, affirmative action, all start with a puzzle. The puzzle is this: how can a society committed to individualism take group characteristics into account when designing government programs? Of course, it is not really a problem. Government could hardly go on if it could not regulate according to group characteristics (coal producers or meat packers, for example); that is the essence of legislation. The real difficulty is that the restriction on governmental use of groups is deemed to apply only to consideration of some social characteristics. Because of the history of the United States, the one category that is almost always toxic is race.
Yet, even to state the problem this way illustrates its difficulty. The complexities cascade because of the stance that the state is compelled to take consistent with a neoliberal understanding of its role. For example, does the state have the authority to craft solutions to social problems that would not have existed but for government action? Much of residential segregation, for example, is the result of deliberate state policies, once those policies are declared illegal may the state mandate desegregation through deliberate intervention in the private housing market? Are there limitations to the kinds of social inequities that are within the ambit of legitimate state action? If a problem is dehistoricized, how is it possible to adequately understand or regulate the relationship between society and the state?
This essay will focus on race-conscious policies in the United States and their evolution within the context of the rise and domination of neoliberal discourse. I take as my starting point, the definition of neoliberalism advanced by David Harvey (2005): Neoliberalism is in the first instance a theory of political economic practices that proposes that human well-being can best be advanced by liberating individual entrepreneurial freedoms and skills within an institutional framework characterized by strong private property rights, free markets and free trade. The role of the state is to create and preserve an institutional framework appropriate to such practices. The state has to guarantee, for example, the quality and integrity of money. It must also set up those military, defence, police and legal structures and functions required to secure private property rights and to guarantee, by force if need be, the proper functioning of markets. Furthermore, if markets do not exist (in areas such as land, water, education, health care, social security, or environmental pollution) then they must be created, by state action if necessary. But beyond these tasks the state should not venture. State interventions in markets (once created) must be kept to a bare minimum because, according to the theory, the state cannot possibly possess enough information to second guess market signals (prices) and because powerful interest groups will inevitably distort and bias state interventions (particularly in democracies) for their own benefit.
1
(p. 2)
The role of the state is thus to ensure that talents of individuals are rewarded in the market which ensures not only justice in the distribution, but efficiency. Regulatory interference with the social product of markets is necessarily suspect unless the interference is designed to produce a functionally freer market (DeNardis, 2014) (Bobbitt, 2002). 2 Economists like Gary Becker (1957), for example, have argued that racial discrimination will be eliminated because the distortion caused by racism will drive up costs for those with a taste for racial discrimination and make them less competitive market participants (Charles and Guryan, 2008). 3 Nonetheless, the continuing existence of racial gaps in education, housing, employment, wealth, and incarceration has led to calls for government intervention on behalf of racial minorities and others who have been systematically disadvantaged.
For the United States, neoliberal discourse frames questions of racial inequality in the following ways: (1) What is the state proscribed from doing to address the problem of racial inequality, (2) What may the state legitimately do, and (3) What must the state do to establish and preserve its legitimacy? Almost all responses to the problems of racial discrimination in American policy follow that structure. The question moves from a focus on the disabilities associated with racism in American life and history to the limitation on public action to address or remediate those problems.
This essay will proceed in the following way: first, the meanings of neoliberalism will be assayed for purposes of putting the arguments over affirmative action in the appropriate context. Second, the essay will ask which groups are the beneficiaries of affirmative action and why has it been limited to those groups and, if it is incapable of being limited, what are the principles of its expansion?
Third, what does the implementation of policies of affirmative action tell us about the institutional structure on which the policies are imposed? In the United States, despite the different institutional settings—education, employment, housing, and government contracting—there has been a similar contour to the evolution of the debate over affirmative action or race-conscious policies. Despite these similarities, there have been different resolutions depending on the relationship of the particular institution to conceptions of market relations. This section will explore those differences.
Finally, the essay will look at what are called “limiting factors” or why affirmative action has almost always been deemed a transitional policy, the duration of which was fixed by the institutional setting and the structure of political opposition. Questions of scarcity have always colored the arguments over the legitimacy of any particular state policy, especially where it appears to lock in an advantage for the beneficiaries of any particular policy at the expense of those who would be excluded from the policies. Thus, employment and education have been the sites of some of the most contentious arguments and where affirmative action has been most vulnerable to neoliberal critique. Scarcity is not the only reason for the heat associated with the conservative or neoliberal critique of affirmative action; instead, it is tied to an understanding of the relationship of educational and employment opportunities to other market benefits.
Taking the characterization proposed by Harvey, the puzzle is not so much why Americans during the post-World War II era felt an obligation to grapple with the country’s history of racial subordination, but how the understanding of those attempts has been transformed by the ascendancy of neoliberal policies and ideology. The real puzzle is whether there was a legitimate role for the state at all in confronting the reality of racial subordination in the United States. The evolution of various legal doctrines that have developed to explain or justify affirmative action parallels the attempts to reconcile conflicting conceptions of democratic legitimacy, federalism, and market supremacy. While affirmative action puts these conflicts into the starkest relief, in fact, they are conflicts that were built into the governing structures from the beginning.
The 2008 global financial crisis which should have discredited neoliberal policies had a perverse effect on American social and economic policies. The crisis produced a reaffirmation of the public/private divide and reduced the legitimacy of race-based intervention in the market as the crisis highlighted the inability of the economy to address scarcity. This inability produced a widespread insecurity that was used to drive a deeper political commitment to neoliberal policies. Any government policy that seemed to be based on the continued official racialization of groups in a heterogeneous society like the United States was viewed with special suspicion. Generality and neutrality, according to legal analysts, are the key virtues in the construction of state policies. Neoliberal critics begin with the dual assumptions that (1) current social reality is the neutral regime and (2) deviation from that baseline demands a robust justification. This justification cannot look like rent seeking on the part of the beneficiaries of affirmative action because that would devalue its normative critique.
The evolution of the commitment to race-conscious affirmative action
The history of affirmative action in the late 20th and early 21st century United States tracks the decline of faith in the power of the state to intervene is the service of social justice. Between the New Deal of President Franklin Roosevelt and the Great Society of President Lyndon Johnson, there was a general belief that the state could mediate structural inequalities with a goal of producing a fairer distribution of economic product as well as opportunities. The New Deal produced a plethora of government programs that directly regulated the economy by, for example, restructuring employment relations providing for a right to organize, creating fair labor standards and a minimum wage, changing the economics of farm production, directly employing the unemployed, subsidizing the arts, regulating finance and securities, providing access to credit to private banks, abandoning the gold standard, bringing electrical energy to rural areas, creating the program of social security, and regulating risk in commodities among many other actions. Much of what we think of as the basic modern administrative state grew out of the actions undertaken by Roosevelt beginning with the New Deal. It also set the framework for sustained opposition to the expansion of the state’s “interference in the market.”
The high water mark of the activist state (that is, active in the service of social equality and social security) was the Great Society announced by President Lyndon Johnson. The Great Society was composed of a variety of programs that carried on the tradition of the New Deal. The so-called War on Poverty combined over 40 programs that were designed to eliminate poverty and to provide people with the tools to help themselves. Medicare and Medicaid extended health benefits to the elderly and extended the promise of social security. In addition, the federal government intervened in public education and other areas that were historically understood to be local or state concerns. Besides addressing problems of the economy, the Great Society also extended federal regulation over the environment presaging the passage of more comprehensive Clean Air and Clean Water Acts and the creation of the Environmental Protection Agency almost a decade later. In short, the extension of the reach of the federal government spanned most of the 20th century.
Yet, the most important difference between the New Deal and the Great Society was the recognition that the continuing problem of racism had to be confronted directly and people of color, especially African Americans and Latinos, had to be brought into the mainstream of American society. This meant that the creation of economic opportunity had to be combined with a commitment to civic equality. That also meant that race had to be explicitly taken into account in the construction of social policy. Thus, the passage of the Civil Rights Act of 1964, the 1965 Voting Rights Act and the obligation undertaken by the federal government to police its own contracting were advances over the New Deal and were deeply controversial. Of course, one might track the genesis of affirmative action to Roosevelt’s 1941 Executive Order 8802 which was entitled: “Reaffirming Policy Of Full Participation In The Defense Program By All Persons, Regardless Of Race, Creed, Color, Or National Origin, And Directing Certain Action In Furtherance Of Said Policy.” But while that order set out a policy against discrimination, it was largely a formal commitment that would take agency implementation to have any effect and without the full backing of the administration to directly attack racial discrimination.
The governmental attacks on racism were deemed in some quarters to be public interference with purely private preferences or in the context of American federalism an intrusive national government usurping the sovereignty of the states. A reinvigorated idea of federalism that hinged on the idea that the states and the federal government occupied distinct political spheres from which each could be excluded was a weapon in the assault on the legitimacy of federal supervision and regulation of race relations (Gerken, 2011–2012).
4
This argument, which is a staple of the neoliberal critique of affirmative action, had its roots in the so-called “Southern Manifesto” which was issued by a group of Southern Senators and Congressmen in resistance to the Supreme Court ruling in Brown v. Board of Education (1954).
5
As the Manifesto proclaimed, We regard the decisions of the Supreme Court in the school cases as a clear abuse of judicial power. It climaxes a trend in the Federal Judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people.
6
(Driver, 2014; George, 1956)
By framing these activities as unduly invasive, critics of the New Deal and the emergent Great Society did not attack the specific initiatives alone, but rather challenged the very legitimacy of the national state to act in these domains. By the time Ronald Reagan was elected President, he could begin his campaign for the Presidency on the graves of murdered civil rights workers in Philadelphia, Mississippi. Similarly, Reagan (1981) could announce in his first inaugural address that “government is not the solution to our problem; government is the problem.” 7
The Great Society and race
Despite the progress made during the New Deal and in post-World War II America, even those people who considered themselves progressive or on the left would have been content to leave questions of race to one side. Today, as issues of class and economic inequality are again coming to the fore, it is useful to remember that issues of racial equality were for those who adopted class analysis deemed to be a sideshow or of secondary importance. Even leading socialists in the New Deal era were reputed to have said when confronted with demands for confronting racism in the trades’ “no fair employment until full employment (Hamilton and Hamilton, 1997: 127).”
8
It was only the concerted action of racial and ethnic minorities and their allies that transformed national politics in a way that made continuing ignorance of the social and economic impacts of racism impossible (Hamilton and Hamilton, 1997).
9
Nonetheless, it was clear from the political discourse of the time that continued emphasis on race within the context of employment policy would be viewed with suspicion because it deviated from an ideology of formal neutrality and class priority. As one left critic put it, Preferential treatment is the most militant demand of the “black bourgeoisie.” … Moreover, while one may scoff at the abstract arguments against preferential treatment used by middle-class liberals, one cannot dismiss the fears it arouses among white workers, especially those whose own economic positions are marginal.
10
(Kahn, 1964)
President Kennedy, when he issued Executive Order 10925 (1961), was the first to require government contractors to take “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.” 11 Yet, this obligation was only a halting step on the way to programs that explicitly took race or national origin into account. In the wake of the assassination of President Kennedy, President Johnson was able to take the popular support that swelled behind him as the nation came together and because of his position as a Southerner was able to push through the civil rights initiatives that had stalled under Kennedy.
The Civil Rights Act of 1964 and the Voting Rights Act of 1965 still stand as landmark achievements. As a technical matter there should have been no reason to pass those statutes, the emerging constitutional jurisprudence should have been enough to permit challenges to the entrenched resistance to racial equality. But, as illustrated by Professor Ackerman, those Acts, in essence, reflected the constitutionalized vision of the civil rights movement (Ackerman, 2014). 12 Yet, merely outlawing racist behavior in a way that directly challenged the ideological commitment to a clear public/private division is insufficient. The task that lay ahead was to design a program of public engagement and enforcement that would produce the rule shifts and cultural shifts necessary to produce durable social as well as legal change. The technique of the statutes was to ban certain practices (like literacy tests or poll taxes or overt racial exclusion from various economic or social spheres) and to create an obligation to produce measurable change in education, employment, housing, and public accommodations (Ackerman, 2014). 13
As summarized by Professor Ackerman (2014), In 1964, only one thing was clear: The American people were giving their elected representatives a mandate for a new beginning in race relations. It was up to the president and Congress to translate this mandate into enduring legal structures.
14
(p. 192)
That would require affirmative action. But, as we will see, affirmative action was already subject to the charge of illegitimate preferential treatment.
Affirmative action
Affirmative action can be loosely defined as a set of procedures designed to eliminate unlawful racial, ethnic, or gender-based discrimination between people seeking admission to an educational program, employment, or a share of government spending through contracting. Historically, affirmative action was on firmest ground when it was understood as a remedial action designed to eliminate or reduce the results of prior discrimination and to establish the conditions to prevent future discrimination. In the case of African Americans, the legacy of slavery and Jim Crow made the elimination of overt racial discrimination fairly straight-forward, but the emerging constitutional jurisprudence created the obligation to locate malign intent in the case of private discrimination or to tie a specific economic or social disability to identifiable state action in the case where a state-supported racial disability had been imposed. Professor Alan Freeman (1977–1978) put it pithily: You can’t assert your claim against society in general, but only against a named discriminator, … [you must] show that you are an individual victim of that discrimination and that you were intentionally discriminated against. And … any remedy must be coextensive with the violation. (p. 1049)
15
Affirmative action was tethered to that analytic structure, though it did not have to be.
Despite the victories that were achieved by the civil rights movement, especially those reflected in the passage of the landmark civil rights statutes and in the complex administrative apparatus created to enforce the statutes, there was always a tension in what the reformers were seeking. As one activist put it, [W]hat began as a “revolt for dignity” against the most overt and humiliating forms of segregation acquired new dimensions. Did the right to use public accommodations amount to much without the means to exercise that right? What difference did the integration of hotels and restaurants make to the unemployed black worker? … It is not surprising that the civil rights revolution should touch upon so many apparently non-racial issues. Segregation and discrimination, after all, are products of the total society; they cannot be eliminated, nor full racial equality assured, while all other aspects of the nation’s life remain as they are. Conservatives may howl that the Negro movement is going beyond its legitimate concerns; and some Negroes who only sought inclusion in existing arrangements may be taken aback by the ramifying institutional changes that genuine integration implies. Nonetheless, the impetus toward broader social objectives is a logical development of the civil rights movement itself.
16
(Kahn, 1964: 10–11)
But Andrew Young, one of Martin Luther King’s chief lieutenants, admits, [T]he civil rights movement was not aimed at ending poverty. It did not focus on economic issues. Not because we didn’t think economic issues were important, but because we didn’t think we could win on economic issues. … The primary battle in the 1950s and 1960s was to right the wrongs against a population that was already qualified and middle class, but that was still denied the basic right to public accommodations in America. We set out to break down the color barriers for those who were exceptionally well qualified and we succeeded.
17
(Orfield and Ashkinaze, 1991: viii)
Affirmative action, as a way to achieve some of the goals of the civil rights movement, was also subject to these tensions. The Voting Rights Act can, of course, be seen as an effort to enforce the individualized norm of “one person, one vote,” but to achieve that result, it had to dismantle a structure of group disenfranchisement and set the framework for the creation of Black political power. The scheme for dismantling the monopoly on White political power required federal supervision of state processes. Yet, even with such federal supervision, the efforts have consistently been met with resistance from entrenched political interests. The Voting Rights Act outlawed the most egregious techniques for excluding Blacks and other protected voters, but the prospect of losing political power produced inventive new ways to hold on to power or to diffuse the power that a transformed electoral process might produce (Guinier, 1994). 18
It was only last year that the United States Supreme Court in Shelby County v. Holder (2013) repudiated the formula agreed on by the Congress to supervise the reform of formerly racially exclusive electoral systems. 19 Yet, in the analysis of the power of the federal government to regulate the electoral processes of the states, Chief Justice Roberts resorted to a claim rooted in federalism to fashion what he called a constitutional principle, but which in reality was a court created rule that permitted him to overlook the need for federal oversight to prevent the reinscription of a political system that the Voting Rights Act was crafted to overturn (Roberts, 1981). 20
But as suggested earlier, the various reforms had different institutional expression so that the idea of “affirmative action” had a different valence depending on where it was deployed. The kind of resistance that would be encountered depended on the nature of the harm and the nature of the remedy. Group remedies made sense in political process reforms, but in employment, education, or contracting, the emphasis was on individuated remedies, and so goals or set-asides were always subject to political attack as being mere rent seeking by people of color (or women).
The 1964 Civil Rights Act produced its own legal technology to implement each of its various parts. In some cases, like public accommodations, the Act relied on the existing technology of civil litigation, and in others like employment, it occasioned the creation of a new administrative structure to identify and police employment patterns and practices. What the Act engineered, however, was distinct technologies for different institutional settings where the patterns of resistance would be different and which might be susceptible to divergent forms of change. But while the goal of both the civil rights movement and the statutes that it spawned were rooted in a specific view of the structure of constitutional rights, it was precisely this view that was being contested by its opponents. The apparent victory represented by the Great Society and its programs designed to move the country toward greater equality were under constant stress.
There has long been a libertarian streak in American politics, but typically the acquiescence in government structuring of the marketplace was an accepted feature of developing American capitalism (Forbath, 1991). 21 Yet, this idea that the state could intervene in markets to remove irrational impediments to their functioning was hardly non-controversial. The Civil Rights Act and the legal technology developed to implement and enforce its normative goals were built on the idea that control of commerce could be a way to change the structure of social and economic institutions. The civil rights movement used the ideology of equality to drive the goals of the statutes and the Supreme Court, as epitomized in the opinion in Brown v. Board of Education, also revealed a commitment to equality and equal dignity. But the opposition would also have its claim to the dominant constitutional norms. For the neoliberal opposition, the constitution protected individuals, not groups, and it was wrong for the state to favor one racial or ethnic group over another, and it was equally wrong to give the national government power to dictate state policies as expressed in the Southern Manifesto.
Affirmative action, the express adoption of procedures to reduce social and racial inequality, was the technique adopted by courts and agencies to implement the changes contemplated by the landmark civil rights statutes. But, once unmoored from specific identifiable wrongs, its remedial force was challenged by opponents characterizing it as mere political rent seeking by a group that had captured governmental apparatus. Yet, even for those political theories that explicitly recognized and, to a certain extent viewed rent seeking as endemic to politics almost by definition (like the emergent rational choice theories), affirmative action was wrong because it violated formal constitutional norms of equality without justifying that deviation by being tied to a specific instance of wrong-doing. Opponents of affirmative action declared that despite the evils of slavery, Jim Crow, and an obdurate racial hierarchy, it was wrong for the state to favor one racial group over another. It was wrong as a matter of constitutional racial norms, and it was wrong because of our commitment to individualism. Once affirmative action was cast in that light, regardless of the institutional setting, it was on the defensive.
The institutional context for affirmative action: Affirmative action and scarcity
Access to education (primarily elite public or private higher education), employment (both private and public), and government contracting are the most heated areas of contest in the debate over affirmative action in the United States. It is not surprising that these sites are the most contentious. In each, the central claims of neoliberalism are almost always given their legal form. In addition, these are areas of scarcity that highlight the position of the loser and where the “loser” is made to seem the victim of government. Because it is the government, the outcome is viewed as illegitimate, not just unfair. To take an example from the context of the so-called property rights movement in the United States, the argument runs something like this: [Opponents of either government ownership or regulation of property tell] a story about property rights that personalizes and humanizes a drama in which the major characters include a big, impersonal government running out of control, and small, relatively powerless owners of private property … [This] is a story in which the powerful are cast in the unlikely role of victim. Here the story is how the successful, those who win in the market, are ruined by that gang of losers, the government. … this narrative construction defines certain arguments as out-of-bounds by limiting considerations of fairness to the effects of government decision making on the current possessors of property. (Torres, 1996: 1)
22
It is exactly the reduction of the current distribution of goods and power to a morally neutral baseline that is a hallmark of neoliberal ideology. If the market is assumed to be the only legitimate arbiter of how goods should be divided, then, as I suggested earlier, in the absence of proof that the markets were distorted there is no justification for the government to intervene to correct any observed distributional pattern no matter how unequal. One of the reasons the law demanded a specific, identifiable wrong was that such discrimination would be evidence of an unacceptable interference with the capacity of market participants to reach a free agreement. Moreover, even the theory of the original civil rights acts rested, in part, on the idea that elimination of unfairness in the market would create positive feedback loops. Those positive feedback loops would lead to a self-correcting market, even if there were litigation required to produce the information for the market (Ackerman, 2014). 23
Scarcity: The example of education
In those places where competition is intense, the commands of non-interference and racial neutrality are the strongest. The conflict over the social obligations related to access to higher education highlights this problem. The public scrutiny of admission is most acute in public institutions because of the norm of neutrality that the state is supposed to adhere to especially in relation to distributive decisions. The structure of the arguments in the educational context is consistent with the structure of argument that is used in other institutional contexts. There are specific differences, but the constitution of the normative claims that drive the arguments are the same. The pinch feels different because of where the conflict arises in the broader economic conflict, but whether it is about education, jobs, or contractual access to government funds, the argument is the same: the government has an obligation to observe strict neutrality where race or some other suspect classification is at issue.
The use of the courts to resolve these disputes is, according to one theorist, in keeping with the technology of neoliberal ideology in a democratic state. As Dag Einar Thorsen (2009) puts it, The practical implementation of neoliberal policies will, therefore, in many cases lead to a relocation of power from political to market-economic processes, from the state to markets and individuals, and finally from the legislature and executive authorities to the judiciary.
24
That complaint has been a constant refrain in American politics even as it has proven to be true, but as I will discuss below, the federal system permits states to use racial resentments to enact neoliberal limits on social policy.
The most recent Supreme Court decisions reflect both this transfer of legitimate power and the tension that has been caused by efforts to eliminate the harms of racial discrimination and the characterization by the opponents of those efforts of affirmative action as “reverse discrimination.” In the context of higher education, the most prestigious public universities, those of California, Michigan, and Texas, have generated the most controversy precisely because their reputation for excellence is a limited good. The State of California triggered the creation of the framework for neoliberal understanding of affirmative action in higher education when it litigated the Bakke case (1978). 25
In the courts: California, Michigan, and Texas
That case involved an admissions program to the University of California, Davis Medical School. Out of 100 places in the entering class, 16 were reserved for economically or educationally disadvantaged students. As applied, these were primarily members of underrepresented racial or ethnic groups. To gain admission, these students had to conform to a different and, according to opponents, a less exacting standard of achievement (as measured by grade point average, standardized medical examination test, and science course grade point average).
The United States Supreme Court, in a collection of opinions representing the views of the court’s members, held that the program too closely resembled an illegal quota, but stopped short of saying that race or ethnicity could never be a factor in admissions. Instead, Justice Powell, whose opinion has become the effective law of the case, said that admissions officers ought to be trusted to use their best good-faith judgment, which may, on occasion, require that they take race or ethnicity into account in assessing the qualifications of individual applicants (Bakke, 1978). 26 Thus, schools were permitted to craft admissions programs that took some account of the race or ethnicity of the application, but only so long as race alone was not the determinative factor in admission. The court recognized that race is an elemental factor in the complex make-up of any applicant primarily because of the social consequences of its ascriptive power.
In California, and in the United States, these matters stood until the affirmative action programs at the University of Michigan were challenged in Grutter v. Bollinger (2003). 27 Grutter involved a challenge to the admissions policies of the University of Michigan Law School. The Supreme Court reaffirmed the importance of the diversity interest as a rationale for affirmative action that was created in 1978 by Justice Powell in Bakke. So long as race did not become the overriding factor in any particular admissions decision, it could be used to achieve the diversity objectives of the university. Race was allowed to be taken into account, especially in light. In Justice Powell’s vision, race was a single, albeit important, element in the complex of individual applicant characteristics contributing to crafting a diverse student body (Bakke, 1978). 28
With Justice Powell’s justification for constructing a diverse student body as their guide, the University of Michigan Law School admitted students of various racial and ethnic backgrounds in a manner that was consistent with it self-defined mission to serve the greater needs of the public and the legal profession (Bakke, 1978). 29 The Law School sought to enroll a “critical mass” of students of color to promote increased minority engagement in the classroom, to reduce identity interference, and to help ensure minority contributions to the mission and character of the law school (Lempert et al., 2000). 30 Note that the justifications were not about curing any societal inequality; instead, it was about the efficacy of the educational experience, improving the state law school and improving quality of legal services without interrogating the uses to which those services are put.
In Grutter, the Supreme Court sanctioned “diversity” as a “compelling state interest that can justify the use of race in university admissions[,]” but it also included an unprecedented time limit on the remedy (US Supreme Court, 2003: 325). 31 According to the Supreme Court, the time was short to secure the changes necessary to render race-conscious affirmative action permissible, and the clock was ticking. Yet, what was necessary or required to eliminate the conditions that produced the observed racial inequality were absent from the observation about the length of time they would be permissible. It was as if the ineluctable operation of neutral market-driven social forces would, of themselves, eliminate any need to “affirmative action.” Perhaps, but unlikely.One interesting thing to note about the evolving justification for eliminating racial segregation in higher education has been its change in focus that puts the institutional needs in the driver’s seat and abstracts them from the social and economic relations within which they are embedded. In doing so, the legal justifications for any affirmative action have to be tied to a specific set of actions that were identifiable instances of intentional racial subordination. Lacking such a smoking gun, the justification, at least in the educational context (but also in the governmental contracting context), has to be rooted in the needs of institutions in which the individual members of racial or ethnic minorities are treated as means rather than as ends.
A mere 9 years later, the United States Supreme Court decided to again revisit the issue of educational affirmative action. At stake was the program enacted at the University of Texas to increase the number of Black and Latino students at the flagship school in the state university system. Once again, there was a disappointed White applicant who complained that there were Black and brown students who were admitted to the university despite having lower objective qualifications. Unlike California and Michigan, this was the first challenge to a program that was attempting to eliminate the vestiges of a de jure system of segregation. Texas, after all, was one of the states that seceded from the Union in defense of the institution of slavery.
Thus, the case of Fisher v. University of Texas 32 (2013) challenged the system of appraisal adopted by the University of Texas although the University did so with the guidance of the Supreme Court. The wrinkle in this case was the existence of an alternative admission program that had, to an extent, kept the university integrated. I will discuss the so-called Texas Ten Percent Plan later. The applicant review process put in place by the University of Texas was clearly within the admissions framework that the Supreme Court approved of in Grutter v. Bollinger (2003). 33 As was true of the University of Michigan Law School approach, the University of Texas admissions process took account of but did not give dispositive weight to race. The University of Texas also subjected its program to systematic periodic review to ensure that it was still fitted to the ends for which it was designed. Moreover, it was designed to satisfy the core values of the educational mission of the flagship campus in the state university system.
Despite adding some limiting language, the Supreme Court permitted the university to continue to take race into account as they did in the Michigan case. The major gap in their discussion was the little weight they gave to the prior role of the University in enforcing an overt system of racial segregation. It was as if the past had vanished, and this was merely another case of examining the acceptable deviations from strict neutrality in the distribution of governmental benefits.
Legislative restriction
Yet, between court challenges that are book-ended by the Bakke and Fisher cases, the people of the State of California passed Proposition 209. This was the so-called California Civil Rights Initiative (1996). After narrow passage, the initiative added section 31 to article I of the California State Constitution (1996). 34 The people of Michigan adopted Proposal 2 which, after passage, became Article I, §26, of the Michigan Constitution (2006). 35 Both laws were designed to limit or prohibit the consideration of race or ethnicity in government programs and decision making.
The passage of each initiative effectively ended affirmative action in California and Michigan. Both have withstood numerous challenges to their validity and the liabilities on significant segments of the population arising from political process failure did not disqualify them. As will be discussed later, the political process failure argument was tested in the Supreme Court in 2014 and was deemed to be insufficient to overturn the ban on affirmative action in Michigan.
Both of these legislative initiatives were rooted in the neoliberal ideology that commanded minimal interference with social processes in a way that would constitute “social engineering” or “preferential treatment.” Read the language of both constitutional changes: California prohibits the state from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.” In identical language, Michigan is barred from discriminat[ing]e against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. What began as an attempt to remedy the current effects of past racial discrimination (or said more bluntly, the protection of a regime White supremacy) was converted into what was characterized as oppression by the state of the majority of its members in favor of a minority. This could only happen, according to the critics, if the state had been made to deviate from the iron rule of neutrality that had been re-consecrated by the federal Civil Rights Act of 1964. What caused the debasement of this hallmark of liberal democracy? The answer lay in the corruption of democracy in favor of racial special interests. The exact processes always remained obscure, but one suspects that the two landmark Civil Rights Acts of the 1960s were deemed to be deviations from a neutral balance point once overt private and public racial subordination had been outlawed. The Southern Manifesto, after all, was about the freedom of the States to order social life and the Supreme Court located federal power in the commerce clause and the Constitutional guarantee of equal protection of the laws. Once commerce was regulated to tilt the market away from protection of norms of racial subordination, federal power was only supposed to ensure that laws were applied evenly and legitimate policies had to reflect that constitutional commitment.
Of course, there was another way to look at actions of the two states. It is a way the Supreme Court has looked at similar actions. If the majority uses indirection to achieve results, it could not achieve directly, at a minimum, but especially if the capacity of an identifiable minority to participate in the political process is compromised, the action ought to be subject to a searching review. The court did this on at least two previous occasions. When California adopted an initiative that purported to remove any disabilities on the power of property owners to sell their property to whomever they wished (in effect to repeal a fair housing law), the Supreme Court saw through the sham and noted that there is no constitutional protection for reinscribing a social debility that the legislature had sought to eliminate. The law created by the initiative was overturned.
Similarly, when Colorado passed a constitutional amendment that repealed local ordinances prohibiting discrimination against gays and lesbians and effectively prevented adopting of similar protective ordinances without amending the State Constitution, the Supreme Court said no. In these cases and others, the court determined that “the political process cannot be restructured in a manner that makes it more difficult for a traditionally excluded group to work through the existing process to seek beneficial policies (Sotomayor, 2014).” 36 You cannot stack the deck against political participants in a way that make it structurally impossible to prevail and neither can you use a wink and a nod to permit the kind of racial discrimination that would otherwise be impermissible.
Yet, in a review of the Michigan Constitutional amendment discussed above, the ruling was that rather than reinscribing a disability on a part of the Michigan population, the amendment was an affirmation of democracy. How did the policy protecting the political process, especially protecting access to the political system by racially marginalized groups, fail in both the Michigan and California cases? The answer is that the state constitutional reforms adopt the neutral structure of the 1964 Civil Rights Act and reset the baseline to incorporate the continued social and economic disadvantages of racialized groups. Any public policy attempt to cure the glaring social inequality that is the American legacy of race relations is classified as illegitimate to the extent that it is not tied to a specific instance of overt racial subordination. This is the legal legacy of the neoliberal ideology (Scalia, 2014). 37
Legislative innovation
Despite the contraction of access to the courts or policy-making apparatus of the state, at least one state used both the norm of neutrality and the reality of social conditions to increase access to elite higher education. In 1996, the Fifth Circuit Court of Appeals outlawed the use of race in University of Texas admissions in the case of Hopwood v. Texas (1996). 38 The then Texas Attorney General applied the reasoning to all admissions and scholarship programs at all state colleges and universities (Morales, 1997). 39 The number of Black and Mexican American students plunged (Hopwood v. Texas: Effects of Hopwood, 2012). 40 The effects at the University of Texas Law School were exemplary. African American enrollment in the entering class dropped from 38 to 4. The number of Mexican American first-year law students fell from 64 to 26. There were similar declines at across the University.
In response, a coalition of Texas legislators led by the Mexican American and African American caucuses and by Representative Irma Rangel introduced a bill to offer automatic admission to the flagship public universities to all students at accredited Texas high schools who graduated in the top 10% of their high school class (HB 588, 1997). 41 This became known as the Texas Top Ten Percent Plan (“TTP”). It leveraged the legacy of racial and class segregation into opportunity for previously underrepresented Texans.
University of Texas President Larry Faulkner responded by creating a race-neutral algorithm that identified low socioeconomic status (SES) schools that were traditionally underrepresented at the university and created scholarships for the top students to encourage them to come to the flagship campus. This algorithm included racial and ethnic minorities as well as poor and rural White students. The TTP and the obdurate residential segregation of Texas saved the University of Texas from complete resegregation. Because the TTP also increased socioeconomic class integration, the TTP generated a new kind of politics. It was a politics that exposed the tension between populism and neoliberalism.
There have been many attempts to repeal or otherwise change the TTP, but instead it has persisted because of its wide cross-class appeal, its formally neutral justification, and its cross-racial coalitions. A delegation from France came to study the program, and other states have emulated it. In this case, the populist strain in American politics, despite the pervasive libertarianism that characterizes it, acts as a bulwark against even more naked assumption of power by the economic elite. What is interesting about the experiment is that its advocates do not concede that affirmative action as a remedy for societal injustice is illegitimate; instead, they have said the greater commitment to equality and neutrality have a role in eliminating social injustice. Thus, race-conscious remedies and race-neutral remedies have a place in transforming institutions in service of greater democratic opportunity.
Conclusion: The delegitimation of affirmative action
Affirmative action began at the federal level as an attempt to move the federal government to a self-conscious position of racial neutrality. The state may not implicate itself in the division of social or political goods along explicit racial lines, unless it is acting to remedy a racial injustice it had a hand in producing or where it has a constitutional obligation (and authority) to eliminate an existing racial injustice. Thus, the economy has to be cleansed of permissible racial discrimination, the electoral process has to be facially open to all who qualify, and public goods have to be distributed according to some non-arbitrary metric.
In racial matters, the state must show no favoritism, it may not use its power to eliminate the vestiges of a previously legitimate racial spoils system regardless of how egregious the inequality. The dominance of the neoliberal ethos means that there is a public sphere that is to be purely neutral and a private sphere that is regulable only on the grounds that the transactions that create the harm were, in some important way, not freely made. It assumes, regardless of beginning circumstances, the capacity for a constellation of free transactions to be the defining feature of justice.
It is against this backdrop that policies of affirmative action are constructed in the United States. There is no race-conscious remedy that is permissible that does not have its justification in either a specific harm that is being corrected or where race is a mere piece of data in the construction of a policy that is in service of some higher goal. Even in the latter case, the higher goal has to be unrelated to any racial agenda.
Of course, affirmative action has not been limited to racial issues. It has been expanded specifically to include gender, but the limiting factors that have hamstrung a conclusive engagement with our history of subordination of African Americans and other non-White people are also in play in questions of gender. The additional factor that is currently still live when questions of gender equality are at stake, but which has largely been relegated to the dark or pathological corners of American political discourse when it comes to race, is the idea that some categories are justified because of “natural” differences. No one in polite society will admit to a belief in inherent differences between the “races” that justify differential treatment of Whites and non-Whites; that argument still has some currency when it comes to gender. One of the reasons this is still a live issue for some is that liberal theory has to have an account of social differentiation that is legitimate in order to ground consent that is consistent with that differentiation. Once racial categories ceased to have any legitimacy as a way to explain the social conditions, one observed then the default position would be racial neutrality even if it meant locking in place existing racial hierarchies. As Don Herzog (1989) put it, “Given the conditions of modern society … any plausible account of legitimacy and obligation must center on whether the state is for the most part responsive to the people,” 42 (p. 205) affirmative action and the political tensions it produces throw the question of responsiveness into high relief. It ultimately racializes the question, What is government for?
Footnotes
Funding
This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.