THE BLOG

McCain-Palin And The Death Of Affirmative Action

05/25/2011 12:45 pm ET
  • Paula B. Mays Trademark Attorney formerly with the United States Patent and Trademark Office.

We have come a long way as a nation but have we come far enough and are we destined to go backward if the U.S. elects candidate McCain and Governor Palin?

I'm talking about race relations and the demonized term "Affirmative Action," which has now come to mean "quotas" and "set asides," but from the beginning was about making policy and programs that would seek to redress past discrimination by ensuring present-day equal opportunity.

Increasingly over the years, and compounded in the Bush Administration, the term affirmative action has been demonized. Instead of rectifying a past wrong, it has somehow come to mean giving an unfair advantage or "privilege" to one group, namely African Americans, over white people, especially in the area of jobs and education. Affirmative action has become synonymous with the term "quota," specifically, setting aside a number of educational of employment spots for minorities.

It did not start off that way. Affirmative Action finds its roots in the 1960's Burger Court, in cases such as Green v. County Board, 391 US 430 (1968). This and related cases placed upon schools an "affirmative duty" to desegregate. This "affirmative duty," was solidified by the Civil Rights Act of 1964, the so called "sweeping Johnson legislation," a part of the Johnson "Great Society."

The Beginning of the End

However, since the early 1980s when Republicans have been in control of the White House with President Reagan, and in control of Congress, and more acutely in the Bush Administration, the hue and cry has come to derail this legislation.

It began with the ground breaking anti-affirmative action case, Baake. Regents of the University of California v. Bakke, 438 U.S. 265, a 1978 Supreme Court case, where Mr. Baake objected to his denial of admission to medical school. Baake claimed the denial was a result of "affirmative action," which set aside spots for minorities, thereby denying whites admission to the University of California at Davis medical school. By a slim margin, the Supreme Court determined the set asides were improper and that Mr. Baake should be admitted to the medical school.

Though the Baake decision did not kill "affirmative action," it was the first major nail in the coffin. Those who wanted to end affirmative action, such as Mr. Baake, focused on the so called "set asides," provisions of the policy, or what are now termed "quotas." They ignored the fact that quotas were implemented merely as a tool to enforce affirmative action, and as a preventative measure. Prior to the set asides, the only remedy for anti-discrimination was a court battle after the discrimination occurred. Such court action is extremely expensive and can take years to complete. For example, Brown v. the Board of Education, though a momentous decision, took years to come to fruition, and more resources than could be gathered by the ordinary citizen. Moreover Brown v. Board was a spectacular case, in the midst of the Civil Rights movement.

The second problem with Brown and with other anti discrimination legislation, enacted prior to affirmative action, is that just because the courts and congress mandate racial equality, does guarantee an individual employer, town, or educational organization will implement racially equal programs. And in fact, they did not.

To remedy the problem of enforcement the Courts permitted and sometimes ordered so called "set asides." That is an employer or educational institution could be or was ordered to set- aside a certain number of slots for minorities. And millions of Americans benefited from these set asides. For instance, from 1960 to 1975, the number of black students in higher education rose from 150,000 students to approximately 1 million.

Destroying the Goose to Get to the Gander

Set Asides

The election of President Reagan and the rise of George W. Bush and the NeoCons, have legitimized the Baake attack on affirmative action. In 2003, President Bush said this about a University of Michigan case taken to the Supreme Court on the issue of affirmative action. "At their core, the Michigan policies amount to a quota system that unfairly rewards or penalizes perspective students, based solely on their race." Bush stated before the Supreme Court hearing, "...tomorrow my administration will file a brief with the court arguing that the University of Michigan's admissions policies, which award students a significant number of extra points based solely on their race, and establishes numerical targets for incoming minority students, are unconstitutional." White House Press release January 15, 2003

The election Senator John McCain and Governor Sarah Palin will likely be the final proverbial nail in the coffin to affirmative action. First, there is no indication that Governor Palin will have the critical analysis needed to see that the goal of racial justice has not been achieved in America. Secondly, Senator John McCain was reported to have said the following with regard to affirmative action in July. "Republican presidential candidate John McCain said Sunday that he favors a proposed referendum in Arizona that would ban affirmative action, reversing a position he took a decade ago."

So how will Senator Obama be different? In an interview with the ABC's George Stephanopoulos, Senator Obama stated: " I still believe in affirmative action as a means of overcoming both historic and potentially current discrimination, but I think that it can't be a quota system and it can't be something that is simply applied without looking at the whole person, whether that person is black, or white, or Hispanic, male or female. What we want to do is make sure that people who've been locked out of opportunity are going to be able to walk through those doors of opportunity in the future."

While Obama has not embraced quotas or set asides, it is pretty certain that Senator Obama will not be hostile to other remedies for discrimination, and that the nature and the tenure of the courts will return to fairness and not ideologically based decisions.

We cannot afford to un-ring the bell of affirmative action. We need leadership that will recognize that utopia has not been reached in discrimination. The risk is just too great.