Affirmative Action is on its last legs. By the end of this term, the U.S. Supreme Court will almost certainly declare it unconstitutional.
In October, the Supreme Court heard arguments on Affirmative Action in two cases, one concerning Harvard University and the other involving the University of North Carolina. At the hearing, the conservative super majority on the Court seemed poised to end the practice of Affirmative Action at universities. This expected ruling will end the ability of colleges and universities to consider race as one of many factors in deciding which of the qualified applicants is to be admitted. Realistically, Affirmative Action has been a weak and mostly ineffectual policy. For most of its existence, much of its effect has been “equal opportunity,” not Affirmative Action. Real
Affirmative Action has been operative mainly in just two areas of American life. The first one was President Richard Nixon’s Ten Percent Set-Aside program. Yes, that Richard Nixon. Under his program proposed by African American Arthur Fletcher, Assistant Secretary of Labor, the federal government required large contractors doing business with the federal government to set aside ten percent of the contract to hire women and minority business contractors. This program worked for 15-20 years until opponents of this kind of progress successfully eliminated it in court cases in the 1990s.
The other instance of real Affirmative Action occurred in colleges and universities. With some success, leaders of some of these institutions tried to provide appropriate admission preferences to minorities. But, of course, the attack on that practice began with the Bakke decision in 1978; the assault on that part of Affirmative Action kept going so that today real Affirmative Action has minimal existence in colleges and universities.
I refer to “real” Affirmative Action as what President Lyndon Johnson described in 1965. Please note that outside the two instances mentioned above, the country seldom, if ever, implemented Affirmative Action as defined by Johnson.
In 1965, in a commencement speech at Howard University—which I attended—President
Johnson laid out his ideas about Affirmative Action. For example, he said, “If two men are running a race and one of them has a ball and chain right around his ankle, and he is there at the starting line fussing with that ball and chain while his opponent is halfway around the track running like mad, you can’t cut those chains off and say, ‘now you’re free, you’re free and equal, run the race.’ That’s not fair,” said Johnson. “That’s not fair; the other man’s halfway around the track. So, somehow, we got to start them at the same place or get this fellow up where he can
catch up with the other man, then say run the race as equals.”
Equal opportunity has been masquerading as Affirmative Action for over 50 years despite Johnson saying, “To this end, equal opportunity is essential, but not enough, not enough. . . We seek not just freedom. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a result.” In other words, we must help such maltreated individuals catch up.
James Farmer, head of the Congress of Racial Equality (CORE), would often tell a story about President Kennedy stepping off a plane one day, looking at the Honor Guard there to meet him, and observing that there were no Blacks there. So, he called the officer over and commented on that fact. The officer smiled and said, “That’s correct, Mr. President; none have applied.” So, the President said, “Well go out and find some.” That, said Farmer, was (real) Affirmative Action.
