Affirmative Action


By Jim Turner*

Back to the future is the right approach to the affirmative action debate. Strip away thirty years of political baggage and you will uncover a measured way to undo patterns of discrimination that is still the fairest cure we have.

In retrospect, the idea that grew into affirmative action seems pretty tame. Back in 1966, the Justice Department looked behind the innocent facade of a craft union in New Orleans and discovered a closed circuit operation that guaranteed that minorities would never work in the trade. Every member of the local was white and a vicious circle of rules guaranteed it would stay that way: to get a job through the union's exclusive hiring hall one had to be a member, related to a member or referred by a member; to become a member one had to have experience working in the trade. This lily-white union could perpetuate itself indefinitely.

To comply with Title VII and break away from the restrictive rules, a federal court approved the first ever race-conscious remedy: the union must seek out and invite minorities to use the services of its hiring hall and, for a time, it must make job referrals on an equal basis, one-for-one, minority and white; the requirements would cease when the evidence showed that the excluded minorities had been afforded a fair chance to obtain work experience and qualify for union membership.

In every sense of the word, the court's orders were "affirmative". Rather than appointing a receiver or bankrupting the local with fines, the court required the union to reform itself. Equitable balance required that a period of negative exclusion should be redressed by a period of affirmative inclusion. This kind of relief, carefully structured and temporary, became standard under Title VII as a way to restore balance to an employment system which, intentionally or otherwise, had used race (or gender, national origin or religion) as a qualification for jobs.

In 1970, another affirmative way to break down patterns of exclusion was designed by the Nixon Labor Department. A federal court approved Philadelphia's approach of requiring contractors seeking city business to pledge that their employees' racial makeup would approximate the local work force. The court held that this was a reasonable way to address the city's legitimate interest in breaking down the discriminatory policies of the past.

In 1979, Congress began to participate in affirmative action. In a special economic stimulus package, ten percent of the public works act appropriation was set aside for minority contractors. The approach was approved by the Supreme Court, stressing its limited nature and Congress' design to address discrimination previously found in federally funded programs.

Into the 1980's, the Supreme Court continued to encourage reasonable reform efforts, approving one employer's training program to help minorities qualify for advancement and another's adoption of goals to overcome a seriously lopsided work force.

Outside the employment field, special affirmative remedies were approved in other activities infected with discrimination, from desegregation of schools to college admissions, even to voting rights. When an election system had been rigged to eliminate or minimize minority participation, the Voting Rights Act required jurisdictions to replace the offending features with fair designs which enhanced the opportunity of minority voters.

There is nothing radical, immoral or un-American in these simple, theraputic concepts of "affirmative action". However, these perfectly sound principles have been so abused by the efforts of fringe politicians and pressure groups that the original purposes are obscured and the general public befuddled.

During the "Reagan revolution", conservative Republicans railed that affirmative action was nothing but a quota system in mild disguise, fanning the flames of racial division with the scary cliche of "reverse discrimination". The Reagan Justice Department mounted frontal assaults, rhetorical and legal, against anything that smacked of affirmative action. Fortunately, the federal courts would not be stampeded and repeatedly rejected invitations to throw out effective remedies because they were inconsistent with someone's pet philosophy.

With similar excess, when liberal Democrats gained control of the council in Richmond, Virginia--after the courts required district elections to enhance the power of black voters--the new majority promptly earmarked 30 percent of city contracting dollars for minority contractors (including Eskimos and Aleuts), not as a tailored access remedy, but as a virtual entitlement. Again, the courts came forward, this time to warn that such casual racial classifications were unconstitutional. The unfortunate liberal penchant for affirmative stretching plays into the hands of the quota-bashers, igniting yet another round of the perennial argument. Following its "no enemies on the left" approach, the Clinton Administration is currently seeking court approval of a new extension of affirmative action, namely, that a teacher may be discharged if her race is inconsistent with the demands of proper diversity.

Perhaps the worst of all worlds is the bipartisan political spectacle that has produced some of the oddest so-called electoral "districts" in history. After the 1990 Census, Republican operatives came up with a poisoned apple--free technology to help minorities design districts they could control, not because it was right, but because concentrating minorities in a few districts would turn adjacent districts Republican. For reasons of practical politics, the Democrats had to help in a campaign to maximize the number of minority districts (no matter how bizzare the shapes) and their Administration is now engaged across the board in trying to defend them all, including some plainly indefensible racial gerrymanders. Indeed, there is a real risk that the courts may curtail one of the Voting Rights Act's most effective remedies.

Over the last 15 years, what passes for public discussion has been a war of ideological slogans. The pendulum swings wildly from those who would use public concern over class-based remedies as a wedge to roll back civil rights progress, to their opposite numbers who see affirmative action as a convenient means to achieve politically correct bean counting. I am moved to plead to all of them, "Let's give it a rest".

Civil rights are basic principles of our democracy that should not be used as political grist. Other than faithful enforcement, there should be no Republican or Democratic "position" on civil rights. Neither party owns them; they belong to all of us as part of our legal heritage. We don't need another evaluation of affirmative action nearly as much as we need a little peace and quiet on the subject. With that, and the guidance of the courts, we can trust business leaders, local officials and federal law enforcement professionals to get on with the business of purging discrimination and enforcing the civil rights laws through the careful, balanced, non-excessive application of the principles of affirmative action.

* James P. Turner retired last year after 25 years as the career Deputy Assistant Attorney General in the Justice Department's Civil Rights Division. He is currently writing a book on civil rights history and policy.

© Copyright 1995 James P. Turner All rights reserved.

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