Late in the afternoon on July 3, the Department of Justice announced it was rescinding 24 documents issued by the Obama administration between 2011 and 2016. The documents offered guidance to a range of constituencies, including homeowners, law enforcement, and employers. Some detailed employment protections for refugees and asylees; seven of the 24 discussed policies and Supreme Court rulings on race-conscious admissions practices in elementary, secondary, and post-secondary schools. In its statement, the DOJ called the guides “unnecessary, outdated, inconsistent with existing law, or otherwise improper.”
No immediate policy change will come from the documents’ removal. It’s more of a signal, a gesture in a direction, a statement about ideology. The Trump administration has already enacted several hard-line positions on immigration. And the Sessions-backed Justice Department has made a habit of signaling, by way of gesture, its opposition to affirmative action, and its belief that race-conscious policies, specifically, often amount to acts of discrimination.
The term “affirmative action” is ambiguous and has never been strictly defined. It’s a collection of notions, gestures, and ideas that existed before its present-day association with race. According to Smithsonian, the term was likely first used in the Depression-era Wagner Act. This legislation aimed to end harmful labor practices and encourage collective bargaining. It also mandated that employers found in violation “take affirmative action including reinstatement of employees with or without backpay” to prevent the continuation of harmful practices. The reinstatement and payment of dismissed employees were affirmative gestures that could be taken to right a wrong.
Nearly a decade later, in 1941, under pressure from organizer A. Philip Randolph, President Franklin D. Roosevelt issued Executive Order 8802 to prohibit race-based discrimination in the defense industries during the buildup to WWII. It is considered the first federal action to oppose racial discrimination since Reconstruction, and paved the way for President John F. Kennedy, who was the first to use “affirmative action” in association with race in Executive Order 10925. Kennedy’s order instructed government contractors to take “affirmative action to ensure that applicants are employed,” regardless of “race, creed, color, or national origin.” President Lyndon B. Johnson expanded the scope of Kennedy’s order to add religion when he issued Executive Order 11246 in 1965. Two years later, Johnson amended his own document to include sex on the list of protected attributes.
It was Republican president Richard Nixon who expanded the use of affirmative actions to ensure equal employment in all facets of government in 1969, when he issued Executive Order 11478. Nixon ran for office in 1968 on “law and order” and “tough on crime” messaging. He believed what he called “black capitalism” –- the idea of thriving black communities with high rates of employment and entrepreneurship — would ease the agitations of civil rights groups and end urban unrest. At the time, Nixon’s rhetoric won the support of a smattering of black cultural figures such as James Brown. “Black capitalism” was little more than a co-optation of some of the tenets of Black Power, which itself had come from a long-established line of conservative black political thought that emphasized economic empowerment and independence, self-determination and personal responsibility. In his version, Nixon envisioned only a slight role for the federal government; without the push of significant government investment, the policies and programs he created didn’t result in sweeping change. Still, shadows of Nixon’s thinking on black economics endured: They’re present in multiple speeches Obama made to black audiences during his presidency; Jay Z’s raps about the transformative, generational effects of his wealth; Kanye West’s TMZ and Twitter rants. Also, the backlash Nixon faced is remarkably similar in tone and content to today’s challenges to affirmative action, which typically involve a white person’s complaints about the incremental gains made by members of a previously disadvantaged group:
In 1969 Section 8(a) of the Small Business Act authorized the SBA to manage a program to coordinate government agencies in allocating a certain number of contracts to minority small businesses—referred to as procurements or contract “set-asides.” Daniel Moynihan, author of the controversial Moynihan Report, helped shape the program. By 1971 the SBA had allocated $66 million in federal contracts to minority firms, making it the most robust federal aid to minority businesses. Still, the total contracts given to minority firms amounted to only .1 percent of the $76 billion in total federal government contracts that year.
Yet even these miniscule minority set-asides immediately faced backlash from blue-collar workers, white construction firms, and conservatives, who called them “preferential treatment” for minorities. Ironically, multiple studies revealed that 20 percent of these already meager set-asides ended up going to white-owned firms.
A sense of lost advantage and power seems to animate both historical and recent challenges to race-based policies and practices. In Regents of University of California v. Bakke (1978) the first affirmative action case the Supreme Court ruled on, Allan Bakke, a white University of California at Davis medical school applicant, sued the school after being twice denied admission. The school had created a system to set aside a certain number of spaces for students from marginalized groups. The Court decided practices that relied on quota systems were unconstitutional, but it upheld the use of race in admissions decisions as long as it was among a host of other factors. Rulings in subsequent cases, such as Grutter v. Bollinger (2003) and most recently, Fisher v. University of Texas (2016) supported the use of race in admissions and reiterated the federal government’s interest in the diversity of the nation’s institutions. In the most-recent case, now-retired Justice Anthony Kennedy provided the Court’s swing vote.
Plaintiffs in affirmative action challenges tend to argue race-conscious admissions policies violate rights granted by the Fourteenth Amendment, especially its clause guaranteeing “equal protection of the laws.” Ratified 150 years ago last week, the Fourteenth Amendment established birthright citizenship and defined citizenship’s parameters. Its ideas originated in the years leading up to Reconstruction, during “colored conventions” held among African American leaders and activists, and form the underpinnings of Brown v. Board Education (1954) and some provisions of the Civil Rights Act of 1964.
One of the most prominent opponents of affirmative action, Edward Blum, a fellow at the American Enterprise Institute, actively seeks and recruits aggrieved plaintiffs and attorneys to challenge race-based policies in school admissions and voting practices. Blum was the force behind the complaint of Abagail Fisher, the white student at the center of Fisher v. University of Texas. According to the New York Times:
In the Texas affirmative action case, he told a friend that he was looking for a white applicant to the University of Texas at Austin, his own alma mater, to challenge its admissions criteria. The friend passed the word to his daughter, Abigail Fisher. About six months later, the university rejected Ms. Fisher’s application.
“I immediately said, ‘Hey, can we call Edward?’” she recalled in an interview.
The case went to the Supreme Court twice, and though Ms. Fisher was portrayed as a less than stellar student, vilified as supporting a racist agenda, and ultimately lost, she said she still believed in Mr. Blum. “I think we started a conversation,” she said. “Edward obviously is not going to just lie down and play dead.”
Blum’s first lawsuit came about after he lost a Congressional election in Houston because, he felt, the boundaries of his district were drawn solely along racial lines. He is now behind lawsuits against Harvard University and the University of North Carolina at Chapel Hill, which allege the schools’ admissions policies discriminate against Asian American applicants. It is interesting and bold to use white women and Asian American students to dismantle programs meant to address America’s legacy of discrimination. Both groups have benefited significantly from Reconstruction and Civil Rights-era policies and legislation. Do Blum, Sessions, and their supporters believe race-based policies are irrelevant, illegal, or improper because for many, they’ve worked? I sense something more nefarious at play, such as a mounting sense of loss and growing resentment that the demographic shifts in our country also mean inevitable shifts in who holds power.
The Sessions-helmed Justice Department’s signals and the nomination of Judge Brett Kavanaugh to the high court, have, I’m sure, heartened activists like Blum. For the Nation, Eric Foner wrote about how the Fourteenth amendment’s ambiguity is what allows it to be used in a way that is so at odds with the spirit of its origins. It is that ambiguity, he says, that will allow, someday, in a different political climate, for another era of correction.
Sources and further reading:
- The Origins of the Term “Affirmative Action,” Smithsonian, Jackie Mansky
- A Bad Check for Black America, Boston Review, Mehrsa Baradaran
- What Abigail Fisher’s Affirmative Action Case Was Really About, ProPublica, Nikole Hannah-Jones
- Citizens: 150 Years of the 14th Amendment, Public Books, Martha S. Jones
- We Should Embrace the Ambiguity of the 14th Amendment, The Nation, Eric Foner
- He Took On the Voting Rights Act and Won. Now He’s Taking On Harvard. New York Times, Anemona Hartocolls
- Stuyvesant’s Valedictorian: Find a Way to Diversify My School, Crains, Mateo Wong
- White Women Benefit Most from Affirmative Action — and Are Among Its Fiercest Opponents, Vox, Victoria M. Massie