Protesting Affirmative Action
The Struggle over Equality after the Civil Rights Revolution
Baltimore: Johns Hopkins University Press, 2012
Hardcover. xii+282 p. ISBN 978-1421403588. $55.00
Reviewed by Allen C. Guelzo
If there was one hard lesson which it seemed that the Reconstruction era in American history (1865-1877) had taught, it was that rights alone are not enough. Surely the Reconstruction constitutional amendments (13th through 15th) and Reconstruction civil rights legislation took seven-league strides in securing for 4 million freed black slaves the same civil privileges enjoyed by the surrounding 27 million or so American whites. But only in law. In practice, white Americans (and especially the former slaveholders) invented a battery of legal and social counter-weapons (the dreaded “Jim Crow” system) which kept the freed slaves in virtual peonage in many places. So, when the civil rights movement of the 1950s reached its crest with the passage of new and more comprehensive civil and voting rights legislation, the black leadership of the movement and their white allies were keen not to make the same mistake of stopping short with mere rights.
One of the staples of Reconstruction interpretation had been the failure, after the Civil War, to weld black civil rights to a foundation of black economic success – or, in the popular phrase of the time, to give freed slaves not only the vote but “forty acres and a mule.” By 1965, forty acres and a mule would not have been worth all that much in the world’s most industrialized economy. But an easier solution seemed at hand in the form of “affirmative action” in hiring, which was laid out as a policy in 1965 by President Lyndon Baines Johnson’s Executive Order 11246. “Affirmative action” was similar in purpose to proportional representation schemes established in India under British colonial rule and Canadian equity legislation in the 1980s. But it struck an unharmonic chord in American minds, where assumptions about egalitarianism and about the openness of opportunity and self-transformation stood firmly across policies which resembled an award of special status or which seemed to declare that American life contained inequities so unresolvable that only governmental power could offer relief. And what gave it an especial edge was an unintentional but lethal mix of race, gender and class resentments. Blacks would receive “affirmative action” in hiring (especially public-sector hiring) and admission to higher education; but the places they would receive would come at the expense of whites, and especially lower-class whites. What was supposed to be a remedy quickly was draped in the uniform of injustice.
Dennis Deslippe’s history of the protests generated by the introduction of “affirmative action” is a very thorough, but also a very narrow, examination of those protests. His focus is confined strictly to the decade between Executive Order 11246 and the celebrated case of Bakke v. Regents of the University of California, the U.S. Supreme Court decision which began the long roll-back of the most sweeping affirmative action programs. But his research is very deep, and he is concerned, not merely with cataloguing the various constituencies which recoiled from affirmative action, but how affirmative action created a disastrous split in the liberal political coalition which had made the New Deal and the civil rights legislation possible in the first place. Much of that coalition was built around an alliance of unionized labor, Jewish cultural elites, and university intellectuals, and affirmative action was, as Deslippe shows, unwittingly destined to split each of them apart.
Workers in the skilled trades looked upon their unions (and their trades) as a badge of class identity and economic security, providing job-safety in the form of seniority and guaranteed places for younger family members “as a kind of property right” . In the interest of promoting minority hiring, though, affirmative action assaulted both seniority and the genteel nepotism of trade inheritance. Seniority no longer ensured immunity from lay-offs, since long-service white workers would have to be released in order to preserve the positions of newly-hired blacks; workers’ children could no longer assume that they would be hired on the same shop floor as their relatives, since hiring was now reserved for minorities. Affirmative action came to be seen as a governmental gift, not to suffering blacks, but to big corporations, who could use affirmative action to weaken union power. And this perception was reinforced by the energy with which affirmative action was enforced, not by a New Dealer like Lyndon Johnson, but by a Republican president, Richard Nixon.
Jews, likewise, shifted uncomfortably at the prospect of affirmative action. Although constituting only a small percentage of the overall population, American Jews had risen over the course of the 20th century from near-invisibility and poverty to commanding positions in the professions, entertainment and higher education, often in the face of ethnic hostility as virulent as that experienced by blacks under “Jim Crow” by appealing relentlessly to the superiority of merit, talent, and hard work to favoritism. Having been the victims of discrimination themselves, Jewish sympathies were overwhelmingly enlisted in support of the civil rights movement. But the use of affirmative action as a solution disturbed many Jews as a subversion of the idea of America as a meritocracy, especially when high-scoring Jewish applicants to higher education found themselves being bumped from consideration in the rush by universities to fix quotas of blacks to be admitted as students or hired as faculty. Jews who had spent decades trying to embarrass American society into abiding by its meritocratic principles, and abandoning “glass” quotas which had excluded Jews, now found themselves being excluded again by quotas and told that merit was no longer an exclusive consideration. These confusions came to a point in 1974 in the case of DeFunis v. Oldegaard, in which a Jewish law student, Marco DeFunis, was denied admission to the University of Washington’s law school in order to accommodate affirmative action admissions. DeFunis neatly split Jewish liberals down the middle, and became the forerunner case for Bakke in 1978.
The response to these objections from government officialdom was not comforting. The chair of the newly-created Equal Employment Opportunity Commission dismissed the numbers of Jews or workers likely to suffer from affirmative action as “insignificant,” and the dean of the University of Michigan law school declared that a measure of “reverse discrimination” was probably unfortunate, “but then I also remember that they did not suffer slavery for 200 years” . It is true that the legacy of Reconstruction illustrated all too well the limitations of mere legislation in moving the nation toward a more perfect equality, so that something had to be done beyond simply legislating rights. But the notion that some people would have to suffer for the sins of others – whether unionized workers, suffering for the discrimination sins of corporations, or Jews suffering for the discrimination sins of Protestant elites – had a distinctly Pharisaical ring to it, as though affirmative action had been designed to allow white progressives to wash their hands of guilt in someone else’s pain. And opposition to affirmative action became a key factor in the rebirth of conservative and neo-conservative politics in the 1970s as whites, who (as Deslippe shows) otherwise sympathized with extending a leg-up to blacks , were enraged to discover that they would have to endure compensatory discrimination. It was one thing for an EEOC commissioner or a law school dean to talk airily about how necessary it was for whites to give place to blacks, and quite another to have to experience that discrimination for themselves. The suffering of a white, denied employment in order to fulfill an affirmative action quota, might be different, but it would be just as real, as the suffering of a black under “Jim Crow.” If the goal of affirmative action was to end suffering, it seemed as bleak an insensitivity as could be imagined to feign indifference to suffering when affirmative action might be its cause.
Only a few academic books deserve the ultimate accolade in which the reader wishes they were longer, but this is one of them. Deslippe is at pains to understand opposition to affirmative action in its first decade, and although his personal sympathies with affirmative action are clear, he is not automatically dismissive of critics who attack affirmative action as the unwise attempt to make two wrongs equal a right. The appetite is clearly whetted to see the story through to Bakke, and eventually to Grutter v. Bollinger – although if Deslippe had done so in the same attention to detail and research evident in this book, we would probably be looking at a multi-volume series. Maybe that wouldn’t be a bad idea.
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