We Won’t Go Back
A Social Work Perspective on Affirmative Action
1998 Issue Update
Lawrence Moore, III
Recent decisions on affirmative action have had a negative effect on minority student matriculation at public universities throughout the United States. This effect can be seen most clearly in Texas and California, where affirmative action in higher education is being dismantled (Stolley, 1997). Public universities in these ethnically diverse states have witnessed sharp declines in black and Latino enrollment, creating fears that the universities could become overwhelmingly white. Assuming rejection, numerous black and Latino students have decided not to apply to schools in Texas and California at all. Of the outstanding minority students admitted to universities in these states, many fearing racial isolation have opted to attend schools in other states. This type of segregation endangers the social fabric of both Texas and California, and calls for vigorous action to avoid divisiveness and ensure that institutions embrace diversity.
Most public universities are governed by the Supreme Court’s decision in the case of University of California Regents v. Bakke (1978). which forbids quotas but permits schools to consider race in admission decisions. However, Texas and California have eliminated any consideration of race in these decisions. In Texas, the change results from a federal court decision that threw out an admission system with separate procedures and panels for applicants of different races (Hopwood v. State of Texas, 1996). In California, the repeal is pursuant to a 1996 ballot initiative--the California Civil Rights Initiative (Proposition 209)--that altered admission policies to prohibit consideration of race.
Both the Texas and California plans eliminate race as an admission factor, and place new emphasis on test scores as objective predictors of university success. Black and Latino applicants are more likely than whites to have been educated in underfunded, inferior public high schools. Thus in the past, black and Hispanic applicants had often been accepted with lower test scores than white applicants. Studies and experience have shown, however, that test scores are only one predictor of potential success, and minority students frequently excel despite low scores.
With this new emphasis on test scores, public universities in Texas and California have seen an extraordinary decline in applications from minority students, with a concurrent drop in matriculation (Stolley, 1997). In California, affirmative action was banned in state medical and law schools in 1997, and will be banned from undergraduate schools in 1998. In the state’s medical schools, applications from black students dropped by 25 percent over the past two years, and applications from Latino students dropped by over 30 percent. Enrollment has suffered similarly. For example, at the School of Law in Berkeley, 20 black students were enrolled in the 1996 first-year class, while only 1 black student matriculated in the 1997 first-year class, an 81 percent decline.
In Texas, the effects of repealing affirmative action can be seen clearly at the University of Texas Law School, which historically has produced more black and Hispanic lawyers than any other law school in the United States (Stolley, 1997). For decades, the first-year law school class consisted of about 40 black and 60 Hispanic students, graduating a total of 650 black lawyers and 1,300 Hispanic lawyers over the years. In 1996, the school accepted about 65 black students; in 1997, only 11 black students were accepted. Only 4 black and 26 Hispanic students enrolled in the 1997 first year class. The remainder decided to attend other universities due to declining minority enrollment at the school.
University officials in Texas and California agree that the paucity of minority students is a direct consequence of new prohibitions on affirmative action (Stolley, 1997). Many minority students are being denied access, and still others are deciding to bypass these states, depleting the states of a skilled and upwardly mobile minority community. To counter this loss, Texas legislators have passed a bill requiring universities to accept the top 10 percent of graduates from all state high schools. California has embarked on a program to link universities with impoverished inner-city schools, in an attempt to ameliorate public school instruction in a race neutral manner. The recent public university matriculation figures clearly show, however, that no "race neutral" admission policy exists. If American universities fail to account for the disadvantages endured by minorities, then our country will face the prospect of resegregation in higher education.
New Threat to Affirmative Action in Education
In Michigan, the Center for Individual Rights, the same law firm that was the legal force behind California’s Proposition 209 is now bringing suit against the University of Michigan, alleging that the school’s admissions policies, which consider race as a factor, are unconstitutional (Sanchez, 1997). Last summer, Republican state lawmakers issued a call for students who believed they had been discriminated against by the University of Michigan to come forward. Jennifer Gratz, a white student who feels she was rejected from the university to make room for minority students, was selected as the lead plaintiff in this newest attack on affirmative action, filed as Gratz et al. v. Bollinger. Opponents of affirmative action are calling this their next best chance to repeal the Supreme Court Bakke decision, and thus to eliminate any consideration of race in college admissions across the nation.
Today, approximately 25 percent of the University of Michigan’s students are minorities; only a decade ago, this figure was about 13 percent. University officials credit this significant increase to aggressive recruiting and to the use of race in admissions. If the current suit against the university succeeds, a scenario similar to what is already occurring in Texas and California is likely, with applications and enrollments from black and Hispanic students falling drastically as students seek education in other states.
To prevent such a scenario, a Detroit, Michigan coalition of area parents, students, individuals and organizations filed a motion on February 5, 1998 to intervene in Gratz et al. v. Bollinger (Citizens for Affirmative Action Preservation, 1998). Known as the Citizens for Affirmative Action Preservation, the coalition is receiving support from national legal organizations, including the NAACP Legal Defense and Education Fund, the American Civil Liberties Union, and the Mexican American Legal Defense and Education Fund. The groups contend that the University of Michigan’s admission policies are non discriminatory and should be preserved.
On June 17, 1997, Rep. Charles Canady (R-FL), along with Sen. Mitch McConnell (R-KY) and Sen. Orrin Hatch (R-UT), introduced the Civil Rights Act of 1997 (H.R. 1909, S. 952). As expected, the bills’ measures sought to prohibit the use of race and gender preferences by the federal government in employment, contracting and other programs. These anti-affirmative action bills attempted to repeal the modicum of opportunity that some minorities and women have been able to acquire through federal mandated programs. The Senate version of the bills saw no legislative action in 1997. Interest in the House was greater, however, with a House Judiciary Constitution Subcommittee hearing on the bill in late May 1997. Fortunately, on November 6, 1997 a solid block of Democrats on the House Judiciary Committee, supported by a group of Republicans, successfully tabled, or killed, the Canady bill (CQ Monitor, November 10, 1997). However, Rep. Canady and other supporters of the bill have vowed to resurrect the issue before next year’s elections.
On June 12, 1997 President Clinton named a seven-member Advisory Board on Race that will organize town hall style meetings, analyze data, and otherwise direct him as he prepares to address America’s racial divide. The discussions of this advisory board and the town hall meetings will likely address affirmative action in addition to many other issues surrounding race relations in America. The first town hall meeting was held in Akron, Ohio on December 3, followed by a meeting in Fairfax, Virginia on December 17 and one in Phoenix, Arizona on January 13, 1998. Town hall meetings will also be held in Oakland, California on February 11 and in Denver, Colorado on March 25. The diverse advisory board, chaired by John Hope Franklin, consists of two black, three white, one Hispanic and one Asian American members. Historically, these panels, such as the Kerner Commission (appointed in 1968) have issued reports which are still cited today. The Clinton panel does not plan to issue any public reports, but instead intends to send findings and recommendations directly to the President, who will then use this information to compile a report on the volatility of racial tensions throughout America. This report will become the basis for a series of White House policy initiatives that the President hopes will become a hallmark for his administration.
On August 12, 1997 the Clinton administration announced that the minority business program of the Small Business Administration (SBA) will be made available to white women (Krauthammer, 1997). Of the 6,000 firms that received $6.4 billion in SBA contracts last year, only nine were owned by white women. Historically, the federal government has supported the development of small disadvantaged businesses (SBDs) owned by minorities and women. SBDs are defined statutorily as small businesses owned and controlled by socially and economically disadvantaged individuals who have been subjected to racial or ethnic prejudice or cultural bias and who have limited capital and credit opportunities. Blacks, Hispanics, Native Americans and Asian Americans are presumed socially disadvantaged by the Small Business Act as amended by P.L. 95-507. In some federal programs, certain others not belonging to these racial or ethnic groups (such as white women) can individually establish disadvantaged status. In other programs, all women are defined as socially disadvantaged and are eligible for participation. Federal assistance to SBDs includes contract set asides and procurement goals, management and technical assistance, grants for education and training, surety bonding assistance, and loans and loan guarantees. These affirmative action programs include the SBA’s section 8(a) program, which provides preferential treatment in obtaining federal procurement contracts to SBDs enrolled in the program.
On December 15, 1997, President Clinton named Bill Lann Lee as Acting Assistant Attorney General for Civil Rights, despite strenuous opposition to this appointment from Republican Senate leadership (Broder, 1997). Lee, formerly a lawyer for the NAACP, has long fought to advance and protect affirmative action. For the last several months, Lee’s nomination had served as a focal point for heated congressional debate over affirmative action, with opponents of affirmative action vigorously opposing Lee due to his support of the issue. Sen. Orrin Hatch (R-Utah), chair of the Senate Judiciary Committee, had refused to allow the nomination to move on to a full Senate confirmation vote, and in early November sent the administration’s nomination of Lee back to the President. By naming Lee on an acting basis, the President was able to bypass the Senate’s role in the confirmation process. Lee will have the full legal authority of a permanent appointment, and could in theory serve as Acting Assistant Attorney General for Civil Rights through the end of President Clinton’s term. The President has stated that he plans to resubmit Lee’s name to the Senate next spring, in the hope of winning a formal confirmation.
Supreme Court Action
On November 3, 1997 the Supreme Court declined to hear an ACLU-filed challenge to California’s ban on race and sex based preferences in public employment, education and contracting, approved by voters as Proposition 209 in 1996 (Purdum, 1997). By doing so, the Court allowed a ruling by the Ninth Circuit Court of Appeals in San Francisco, stating that Proposition 209 was not unconstitutional, to stand. Civil rights groups had argued that the law abolished only programs that benefited women and minorities, while maintaining preferences based on age, disability and veteran status. The Supreme Court decision represents the culmination of a year-long battle over the constitutionality of Proposition 209 in California’s judicial system. Opponents of the state’s affirmative action ban say they fully expect to see a new challenge filed in federal court, most likely by a plaintiff claiming harm from the actual effects of Proposition 209, as affirmative action programs are dismantled.
California can now begin implementing Proposition 209. The measure requires that the state "not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, ethnicity, or national origin in the operation of public employment, public education, or public contracting." Essentially, government agencies must immediately begin dismantling affirmative action programs that conflict with this voter-approved ban. The ban does not affect private corporations or other nongovernment entities, nor is it applicable to federal affirmative action programs or state programs required to maintain eligibility for federal funding.
N.J. Board of Education v. Sharon Taxman
On November 20, 1997 the Piscataway, NJ school board voted 5-3 in favor of a $433,500 settlement with teacher Sharon Taxman (Greenhouse, 1997), thus agreeing to drop its appeal to the Supreme Court in the case of Piscataway,
New Jersey Board of Education v. Sharon Taxman. Piscataway has been considered one of the most significant affirmative action cases in recent years. The high-profile controversy began in 1989, when the Piscataway school board, in the midst of a financial crunch, informed Sharon Taxman, a teacher in their business department, that she would be laid off so that the school could keep Debra Williams, the sole black instructor in the department. Both professionals had been hired on the same day nine years earlier, and had received virtually identical performance reviews during their employment at the school.
During the Bush administration, the federal government supported the white teacher; however, the government altered its position to support the black teacher after President Clinton assumed office in 1992. In June 1997, the Clinton administration shifted its position, urging the Court not to take the case at all; then in August, the administration submitted a legal brief urging the Court to rule against the Piscataway, NJ school board.
In discussing their reasons for agreeing to a settlement, Piscataway school board leaders said the notoriety of the case and the concurrent media attention were distracting students at the local high school. The Black Leadership Forum, a confederation of leading civil rights organizations, agreed to pay roughly 70 percent of the settlement on behalf of the school board. The Piscataway settlement, in addition to the Court’s refusal to hear the challenge to California’s Proposition 209, moves the national debate over affirmative action away from the Supreme Court for the time being.
In 1997, a total of 23 anti-affirmative action bills were introduced in over eleven state legislatures. Over three fourths of these bills saw no action after being introduced and referred to the appropriate committee, and only one, H.B. 1299 in Colorado, passed a single legislative chamber. Attempts to introduce state level initiatives similar to California’s Proposition 209 have also occurred in several states, including Colorado, Florida, Ohio, Oregon, and most notably in Texas and Washington.
In Houston, Texas, a victory was scored by supporters of affirmative action on November 4, when voters rejected an initiative to "end the use of affirmative action for women and minorities" in the city’s employment and contracting practices by a margin of 10 percentage points (Mason, 1997). Many commentators attributed this affirmative action victory to the explicit use of the phrase "affirmative action," which seems to enjoy more broad support than terms favored by affirmative action foes, such as "preferential treatment" and "quotas." Another decisive factor in the vote’s outcome was widespread corporate support for affirmative action. Major corporations based in Houston, such as Exxon and Enron, helped finance advertising and crucial get-out-the-vote drives in black neighborhoods to defeat the proposition.
A Washington state initiative (Initiative 200) to ban consideration of race and gender in state government hiring, contracting and college admissions was introduced in 1997 and will continue to be of concern in 1998 (Postman & Serrano, 1998). On January 2, 1998, supporters of this anti-affirmative action measure submitted more than the needed 179,248 valid signatures to the state legislature, requiring the legislature to certify the initiative. The Washington state legislature can now take one of three options: adopt the initiative into law, forward the initiative to the November ballot, or place it on the ballot in an amended form. On February 10, 1998 the Seattle Times reported that there is insufficient support in the Washington state legislature to pass the Initiative, and that the legislature will likely forward the initiative with its current wording intact to the fall voter ballot (Postman & Mapes, 1998). Some supporters of affirmative action have expressed concern, because the current language of Initiative 200 refers to "preferences" rather than to "affirmative action." As discussed above, experiences with Proposition 209 in California and with the Houston proposition have shown that voters may be more likely to vote against ending "affirmative action" than ending "preferences."
Social Work Involvement
NASW strongly opposes the repeal of affirmative action, because such programs form a significant component of America’s efforts to eliminate bigotry, bias and discrimination targeted at minorities and women. Since the introduction of the so-called Civil Rights Act of 1997, NASW vigorously lobbied House and Senate members in successful opposition of this ominous measure. NASW collaborated with notable civil rights organizations such as the NAACP, American Association of University Women, National Urban League, Leadership Conference on Civil Rights, National Council of La Raza, Mexican-American Legal Defense Education Fund, Religious Action Center, and Catholic Charities to defeat this regressive legislation and to protect the civil rights and dignity of minorities and women. NASW also extensively lobbied Senate members in support of Bill Lann Lee’s nomination to become Assistant Attorney General for Civil Rights, in collaboration with civil rights organizations in support of affirmative action.
The evidence is overwhelming that the time has not yet come to dismantle affirmative action programs. Recently publicized examples of employment discrimination involving corporations such as Mitsubishi, Texaco, Avis, Home Depot and Circuit City; the 80,000 case backlog of individual discrimination claims at the Equal Employment Opportunity Commission; and the numerous studies documenting widespread housing discrimination prove that extensive discrimination continues to permeate American society. Since their inception in the late 1960s, affirmative action programs have enjoyed bipartisan support, including that of six presidents, both Democrat and Republican. Numerous leaders have reaffirmed their support for continuing affirmative action programs, including Republican governors Whitman (NJ), Weld (MA), Ridge (PA), Voinovich (OH), Rowland (CT), and Edgar (IL), and Gen. Colin Powell, former chairman for the Joint Chiefs of Staff for Presidents Bush and Clinton.
As social workers profoundly committed to the traditions of our profession, we will continue to strive for the alleviation of discrimination and bigotry and the creation of equity and justice for all Americans. By allowing educational institutions, businesses and government to take race, gender and ethnicity into account, affirmative action has helped the nation emerge from its discriminatory and painful past. Because of the diversity among our clients and profession, social workers must engender a collective spirit to combat the pervasive ideology that exists among affirmative action cynics. Consistent with our training, social workers should seek change and advocate to remedy areas where discriminatory practices are prevalent. NASW contends that affirmative action is a fundamental civil rights issue.
The nation has made great strides in addressing discrimination and bigotry during this century, specifically in the past 30 years. Laws that denied citizenship to people because of their race and ethnicity or allowed discrimination against women because of their gender have been repealed. Discrimination in employment, housing, education, public facilities and at the ballot box is now illegal. Segregated lunch counters, movie theaters, water fountains and restrooms are no longer a part of the American landscape. At the same time, research and everyday experience demonstrate that discrimination continues to permeate American society, resulting in lost opportunities for too many individuals. Affirmative action programs aimed at eliminating the past and present effects of discrimination based on race, national origin or gender remain needed. If America is to become a true multiracial democracy, then it must derive strength from all its cultures and must evidence faith in equality and human dignity. Until all vestiges of inequities are eliminated, affirmative action measures that promote equal opportunity remain critical for minorities and women.
- Broder, J.M. (1997, December 16). Clinton, softening slap at Senate, names ‘acting’ civil rights chief. New York Times, pp. A1, A26.
- Citizens for Affirmative Action Preservation (1998, February 5) [On-line]. Coalition seeks to intervene in Michigan affirmative action suit. Press Release. Available: www.aclu.org
- Greenhouse, L. (1997, November 22). Settlement ends high court case on preferences: Tactical retreat: New Jersey school move leaves affirmative action in limbo. New York Times, pp. A1, A14.
- Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996).
- Krauthammer, C. (1997, August 15). Diversity’s trap: The ultimate distraction from America’s greatest problem. Washington Post, p. A25.
- Last week: A summary of Hill news. (1997, November 10). CQ Monitor, p. 8.
- Mason, J. (1997, November 5). Voters keep affirmative action program alive. Houston Chronicle, pp. 1A, 16A.
- Piscataway, New Jersey Board of Education v. Sharon Taxman, 832 F. Supp. 836 (D.N.J. 1993), aff’d en banc, 91 F. 3d 1547 (3d Cir. 1995).
- Postman, D., & Serrano, B.A. (1998, January 3) [On-line]. No quick action on I-200 likely. Seattle Times, Available: www.seattletimes.com.
- Postman, D., & Mapes, L.V. (1998, February 10) [On-line]. I-200 lacks lawmakers’ votes; It’s likely headed for ballot. Seattle Times, Available: www.seattletimes.com.
- Purdum, T.S. (1997, November 3). High court declines to hear affirmative action challenge. New York Times, p. A1.
- Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
- Sanchez, R. (1997, December 5). Final exam for campus affirmative action? White applicant’s test of Michigan admissions could set national policy. Washington Post, pp. A1, A35, A36.
- Stolley, A.M. (1997, September). Return to segregation? National Jurist, pp. 34-40.