Restless Giant: The United States From Watergate to Bush v. Gore (5 page)

Though conservatives led most fights against affirmative action, otherwise liberal blue-collar workers often backed them. Labor union members complained bitterly that affirmative action procedures violated hard-won contractual principles that guided hiring, promotions, and termination procedures. When a federal judge ruled in 1975 against the Detroit police department’s “last hired, first fired” seniority principle, thereby protecting recently hired black officers, many white policemen were enraged. Hearing the decision, some of them (facing the loss of their jobs) moved to block the streets. “Talk about rights; we’ve got no rights,” they shouted. “We’re gonna kill you . . . niggers,” one man shouted. Fighting broke out between several off-duty white policemen and one black off-duty policeman. Guns were drawn. The black officer suffered a broken nose and was taken to the hospital. Some Detroiters called the fracas a “police riot.”
³³

The brawling in Detroit exposed the extraordinary contentiousness that exploded in the 1970s over programs aimed at countering racial discrimination. As in Detroit, this wrangling sometimes cut across party or “liberal”/“conservative” lines. It also revealed the growing power of rights-consciousness in America. Detroit’s white police officers, angry that the courts were expanding the entitlement of blacks, countered with a rights-conscious language of their own. Struggles over affirmative action, as over abortion and many other contentious issues in late twentieth-century America, increasingly featured protagonists who talked the talk of rights.

Few people in the mid-1970s, however, anticipated that affirmative action for minority groups other than African Americans would become significant in numerical terms. Because immigration had been low since the 1910s, by the time of the 1970s ethnicity had come to play a relatively small role in American political life. In 1970, only 9.6 million Americans—4.7 percent of the population—were foreign-born, the smallest percentage in more than 100 years.
³⁴
People hailing from Europe, led by Italians, Germans, and Poles, numbered 5.7 million, or roughly 58 percent of the foreign-born. The number who had come from Latin America was only 1.8 million; from Asia, around 800,000. Words and phrases that later dominated discourse about race and ethnicity—“diversity,” “multiculturalism,” “minority groups” (in the plural)—were only beginning to find their way into everyday use.

Thanks to an immigration reform act in 1965, however, the number of legally admitted newcomers was far larger in the years to come, totaling some 28 million people between 1970 and 2000. Affirmative action procedures, gradually extended to cover many of the non-white foreign-born (and their descendants), came to have a broad reach.
³⁵
Federal policies providing affirmative procedures of various sorts to minorities in 2000 potentially covered more than 80 million people—not only the 35 million (12.3 percent of the population) who were African American at that time but also the slightly larger number of 35.3 million (12.5 percent) who were of Latino origin, the 10.1 million (3.6 percent) who were Asian American, and the nearly 2.5 million (1.2 percent) who identified themselves as Native American, Eskimos, or Aleuts. This was more than 29 percent of the overall population of 281 million in 2000.
³⁶

The Supreme Court, too, advanced the trend toward protection of minority interests, ruling unanimously in 1971 that employers could be found guilty of racial discrimination in hiring even if there was no evidence that they had intended it. The Court, then headed by Nixon appointee Warren Burger, explained that the
consequences
of hiring criteria—that is, whether such criteria (in this case, requirements that employees have a high school diploma or pass a generalized intelligence test) resulted in the disqualification or exclusion of minority applicants—must be considered in determining whether an employer had violated Title VII.
³⁷
In 1977, the Office of Management and Budget (OMB) affirmed already existing EEOC practices by issuing Directive 15, which identified not only African Americans but also Spanish speakers, American Indians, Asians, and Eskimos and Aleuts as groups that might be deserving of certain kinds of affirmative action.

This “ethno-racial pentagon,” as it was later called, showed how far toward sanctioning group preferences and entitlements the tide of liberal opinion had surged by the late 1970s. It was a tide that rose in part from the actions of members of Congress, state legislators, and city leaders, who approved set-aside programs assisting minority contractors, and in part from non-elected public officials in federal agencies like the EEOC, from liberal public interest activists and lawyers, and from judges who favored rights-based policies. By 1980, the so-called Leadership Conference on Civil Rights, which represented more than 165 rights-conscious organizations, was developing considerable influence in Washington.
³⁸

Affirmative action programs, designed to facilitate upward social and economic mobility, did little to help the masses of low-income minorities, most of whom were ill-educated and worked (if employed at all) in blue-collar or service sector jobs that offered little in the way of social mobility. Affirmative action did, however, give a substantial boost to the educational opportunity and advancement of middle-class women, and to relatively small numbers of upwardly mobile minorities who were therefore admitted to universities and who moved ahead in the world. By the late 1980s, most large American corporations had adopted affirmative action procedures in order to diversify their workforces and/or to avoid costly litigation alleging racial or gender discrimination concerning their hiring and promotion practices.
³⁹
The military services, meanwhile, worked harder to promote racial integration.

Still, affirmative action distressed many contemporaries, who argued that it created overblown and unrealistic expectations about entitlements and that it encouraged minorities to revel in feelings of victimization, some of which led to costly and highly divisive litigation. They further complained that democratically elected national and state legislators had not enacted many of these procedures: Affirmative action, like court-ordered busing, was often damned as elitist and undemocratic, pressed into existence primarily by non-elected “limousine liberals” and the like. For all these reasons, many conservatives were appalled. Ronald Reagan, informed of Humphrey’s statement, later said that if the senator had lived to see what the tide of rights-consciousness had done to the Civil Rights Act, he would have had a “severe case of indigestion.”

University officials, too, supported policies advancing affirmative action. By the mid-1970s, most of the nation’s selective universities had written anti-discrimination procedures and principles into their admissions practices. A few seemed to be going beyond affirmative action, which normally entailed special efforts at outreach and recruitment of women and minorities, in order to embrace admissions quotas for various minority groups. Advocates of these varying procedures sometimes defended them by pointing out that universities had long given preferential treatment to various applicants, notably “legacies”—sons and daughters of alumni, most of whom were white and middle-class. Advocates further stressed that minorities, who on the average scored poorly on various tests used for university admission, had suffered from historic discrimination—or from racially biased tests—and deserved compensatory justice in the present.

These university officials, like other supporters of policies such as these, often emphasized that deserving minorities had a
right
to them. By increasing the number of blacks and other minorities who might study at leading universities, they said, such efforts facilitated racial integration and “diversity” on campus, as well as all-important access to the networks of association that enabled students to advance in later life. Racially liberal admissions criteria, they insisted, boosted a Talented Tenth, or more, into the middle classes. Minority graduates, serving as role models, would help to open doors throughout the wider society.
⁴⁰

These procedures at universities actually affected relatively few applicants, either whites or minorities. Most of those who succeeded in gaining admission were especially qualified students who competed with one another for a limited number of available places at America’s most select colleges and universities—a small fraction of higher education overall.
⁴¹
Most other institutions outside the South, as in the past, took in high school graduates, whether white or non-white, who could pay tuition. Some colleges, desperate for students, continued to accept applicants who were semi-literate. Thus affirmative action procedures in higher education were numerically far less significant than the issue decided by
Milliken v. Bradley
, which affected millions of children in the public schools. Some observers saw affirmative action policies as mainly a symbolic cause—a kind of tokenism to ease white consciences about the socio-economic plight of minorities and the failings of inner-city public schools. Others viewed these policies as evidence of yet another selfish struggle for interest group advantage. Yet tempers about university affirmative action grew hot in the 1970s, in part because such programs could make a difference in the life chances of aspiring minorities and of the sons and daughters of articulate, politically engaged, middle-class white parents.

White parents who denounced the practice asked why their blameless, racially tolerant children should lose a place at Stanford or Brown because of the discriminatory sins of Americans in the past. They insisted that minority students admitted via preferential admissions policies would drag down academic standards. Students of color who were let in, perceived to be “undeserving” of admission, would therefore be stigmatized. Pointing to continuing interracial tensions on many campuses, critics further maintained that racial diversity in higher education did little to advance black–white friendships or understanding. If universities really hoped to attack discrimination in admissions, they said, they should consider programs that would counter policies that favored wealthy students over poorer applicants who could not afford tuition. If they expected to remedy the ills of education for minorities, they should seek to cure the ailments of inner-city elementary and secondary schools, not use universities as a Band-Aid or a crutch.

Above all, critics of affirmative action programs complained, as in the later words of one scholar, that they “cast even the lowliest Euro-American as a privileged oppressor.”
⁴²
They created “reverse discrimination” that violated ideals of fairness and constitutional guarantees of equal protection under the law. Some of these critics agreed, often grudgingly, that affirmative action might be justified as a way of countering the uniquely barbarous historic discrimination that had afflicted blacks and American Indians, but that it should not be extended to other minorities of color: These minorities, like white ethnics in the past, could and should make it on their own. Critics added that many young Americans of color—as from Cuban, African, and Asian families—had middle-class backgrounds. Why offer the entitlement of affirmative action to them? Deploying a principle that resonated with many Americans, foes of affirmative action demanded that universities—and employers—seek to identify only those applicants who had demonstrated merit, not reward categories of people with non-white skin colors.

As so often with controversies in late twentieth-century America, fighting over affirmative action moved into the ever expanding realm of the courts, where a host of interest groups entered briefs concerning admissions criteria employed by the University of California at Davis medical school. These established quotas for various minority applicants and were challenged by Allan Bakke, a white man who had twice been denied admission though he had higher test scores than most minority applicants who had been accepted. The university, he charged, had denied him equal protection under the laws. Most leading Jewish organizations, pointing out that American universities had long used quotas to limit the number of Jewish students, also joined the interest groups that opposed the university. So did the American Federation of Teachers, the Order of the Sons of Italy in America, and the Polish-American Congress. In October 1977, when the Court heard the
Bakke
case, it had a record number of briefs (fifty-eight) to consider. For the next eight months, Americans eagerly awaited the Court’s decision.
⁴³

In June 1978, the Court finally decided, ordering the university to admit Bakke next semester. It did so, however, with a resounding lack of consensus that reflected divisions in popular opinion. By a margin of five to four, with “swing man” Justice Lewis Powell casting a decisive vote, it ruled that the medical school’s quota system reserving places for minorities violated both the equal protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, which barred racial discrimination by any institution receiving federal funds. As Justice John Paul Stevens wrote, “Race cannot be the basis of excluding anyone from participation in a federally funded program.” Justice Marshall, dissenting, lamented, “After several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible.”
⁴⁴