Affirmative Action won’t be around in 10 years. At least not if Frank Ricci, a white firefighter in the New Haven, Conn. Fire Department has anything to say about it.
When the city’s fire department threw out its promotional test because no Blacks did well enough to qualify for promotion, Ricci sued.
Conservatives who oppose affirmative action have latched onto his story during Sonia Sotomayor’s Supreme Court confirmation hearings in an attempt to undermine the program.
All of this comes just months after America elected Barack Obama as its first Black president. At the same time, we also have a Black Attorney-General (Eric Holder) and chairman of the Republican Party (Michael Steele). So an important question is increasingly being asked about the use of affirmative action: do we still need it?
Professor Teri Jett of Butler University answers with a yes.
“We still need affirmative action policies because there are a lot of institutions, educational and otherwise who have failed to embrace the importance of diversity and need some assistance in this area. And furthermore many still have discriminatory policies and cultures in place and need outside help to correct these practices,” said Jett.
A Gallup poll from last year found that a majority of Americans agree that racism against Blacks is a problem. Even 51 percent of whites felt that way. That number jumps to 78 percent among Blacks. Experts say as long as people think Blacks face discrimination, there could still be a need for affirmative action.
A look at many places in American life reveals a less than exciting picture relative to diversity. For example, only five Chief Executive Officers (CEOs) of Fortune 500 companies are Black. That’s one percent. Jett hopes affirmative action will allow companies to diversify their organization, which she says is just good business practice.
Still, it’s time for affirmative action to go, according to Black conservative John McWhorter. He argues that even with remaining racism and racial disparities, we cannot shrink “from real competition until America is perfect.”
“Diversity has served as a flimsy and evasive perversion of justice. It has helped no one, least of all Black students. It’s high time we swept it (affirmative action) into the dustbin of history,” said McWhorter.
Whatever the merits and demerits of affirmative action, it is under assault. In 2003, the Supreme Court upheld the University of Michigan Law School’s racial preferences by a narrow 5-4 margin in Grutter vs. Bollinger. The law school used race as part of a holistic process, which weighed many factors.
That same year, the court ruled that Michigan’s undergraduate admissions program was unconstitutional. The undergraduate program used a points system. An applicant who accumulated enough points was accepted. Being Black was worth a certain number of points in the process.
Justice Sandra Day O’Connor wrote that she expected 25 years from now, the use of racial preferences will no longer be necessary. But affirmative action could be gone long before then.
There is a chance that the Supreme Court could decide to strike down affirmative action.
“There are certain members on the current court that are itching for the opportunity to strike down affirmative action,” said Denise LaRue, an Indianapolis attorney specializing in employment discrimination law. LaRue named Justices Samuel Alito, Clarence Thomas and Antonin Scalia as people looking to rule against affirmative action.
Those justices, along with Anthony Kennedy and John Roberts ruled in 2007 in Meredith v. Jefferson County Board of Education, that the use of race in school assignment plans to achieve diversity in schools in Seattle and Louisville was unconstitutional. Such a ruling might indicate a willingness to declare the use of affirmative action on the part of employers and universities to be unconstitutional.
If the Supreme Court does not outlaw affirmative action, then voters might. In 1996, California—one of the most liberal states in the country—passed proposition 209, which banned the use of affirmative action in state institutions. Washington State, Florida and Nebraska have followed suit. That leaves the ironic prospect that the generation that saw the election of a Black president could also see the demise of affirmative action.