Expiration of Affirmative Action

Submitted by Bill Lucas on Fri, 01/09/2009 - 16:27

Affirmative action got its start with an executive order signed a few weeks into John F. Kennedy's administration.  Expanded by further executive orders and court interpretations of the Civil Rights Act of 1964, the programs eventually required organizations receiving federal funds to demonstrate that a percentage of their workforces and subcontracts were reserved for minorities.

The rationale for the programs was that because minorities had been discriminated against in employment for decades, and in the 1960s and 1970s were still being discriminated against, it was the federal government's responsibility to enforce proportional participation for them.

The main argument against the programs was that in forcing an organization to reserve a portion of opportunities for minorities, the government was in effect discriminating against non-minorities - whites, typically - that would have won those opportunities on purely competitive grounds.

Although it is subject to that "reverse" discrimination criticism, affirmative action was the right solution at the right time to address pervasive racial bias in employment.  Lyndon Johnson put it best when he said in 1965, "You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, "you are free to compete with all the others," and still justly believe that you have been completely fair."

But how long is it necessary to apply these extraordinary measures before the effects of past wrongs are corrected?  When can we as a society say that it is time to dismantle affirmative action programs and return to a less "managed" form of competition for opportunities?  When can these race-based preferences expire?

Justice Sandra Day O'Connor discussed such an expiration of affirmative action in her majority opinion in Grutter v. Bollinger (2003), in which The University of Michigan Law School's minority preference in admissions was upheld by the Supreme Court:   "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."  She referenced in her opinion a similar case which had arisen about 25 years earlier, Regents of the University of California v. Bakke (1978), in which the Court allowed the continued use of race as a factor in admissions, though within narrow constraints.

Justice O'Connor's mention of 25 year periods coincides with a commonly used definition of a generation.  The Bakke case came up in the middle of the first generation of individuals to enter productive society under the influence of affirmative action programs.  The Grutter case came to the court in the middle of the second generation.  O'Connor's contention is that a similar case in the middle of the third generation would no longer survive constitutional review.

That view is the correct one.  There is a high likelihood that if a "third generation" individual is entering the workforce without adequate preparation, it is more due to the failure of that individual's parents and grandparents to take full advantage of the opportunities that society provides than due to latent and persistent bias in hiring and admissions practices.  To continue to maintain preferences past the second full generation of affected parties would be to ignore the human faults that exist in members of all races.  Many people simply do not focus on preparing their children for competition in the workforce.  Contorting the competitive playing field will never solve that type of problem.

So what does two generations mean?  It means that 50 years after the enforcement of affirmative action became widespread, or somewhere between 2015 and 2025, should mark the point at which I would support legislation or court action to vacate the provisions of the programs.

This does not mean that the anti-discrimination laws should be removed or ignored at that point.  Indeed, they should be enforced more intently from that point.  Affirmative action was initiated in the first place due to the failure of companies, universities, and legal agencies to enforce existing law.  There is no reason to believe that persistent prejudice among the majority will not leak into the public sphere again.