Review: A book that will challenge your views about affirmative action
In November 2019, voters in Washington State defeated Referendum 88, which would have reinstated affirmative action policies in the state. (AP Photo/Elaine Thompson)At the start of The Affirmative Action Puzzle, Melvin Urofsky makes it clear that his goal is not to “make a case for or against affirmative action” but to provide context for “how affirmative action affected politics, the economy, higher education, the law, and the groups involved.” He achieves this aim, and readers of this book who are engaged with these issues will be rewarded and will find their views challenged.
To appreciate this goal, we must first understand what affirmative action is. In this book, Melvin Urofsky, an emeritus professor of history at Virginia Commonwealth University and the author of numerous books, including Louis D. Brandeis: A Life (2009) and Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue (2015), details the critical issues.
What is affirmative action? Urofsky defines two types of affirmative action: “soft” and “hard.” Soft is opening doors to groups (for example, the Civil Rights Act of 1964), while hard involves preferential treatment and quotas or timetables. According to Professor Urofsky, the subject of affirmative action is still “a great puzzle.”
In The Affirmative Action Puzzle, Melvin Urofsky defines two types of affirmative action: “soft” and “hard.”
The author begins with the Supreme Court’s infamous decision in the case Plessy v. Ferguson (1896), which upheld segregated schools so long as the facilities for separate races were of “equal merit.” In one of the most important dissents in Supreme Court history, Justice John Marshall Harlan looked for a “color-blind” Constitution: “the Constitution is color-blind and neither knows nor tolerates classes among its citizens.” At the time, Justice Harlan’s decision in 1896 was seen as an ideal to dream for. Today, the color-blind approach does not provide justice to minorities.
Various factors involved in affirmative action are further analyzed in a famous opinion for the case Regents of the University of California v. Bakke (1978). This decision involved a white applicant to a state medical school who was denied admission because the school’s plan set aside a quota of 16 seats for minorities. In a 5-to-4 opinion, the Supreme Court found that the school’s absolute quota approach was unconstitutional and that it denied Allan Bakke’s right not to be discriminated against based on race. The opinions in the case broke out into two groups of four justices on each side, with Justice Lewis Powell Jr. issuing the decisive opinion.
Four justices argued that the Constitution was indeed color-blind, that Justice Harlan’s dissent in 1896 was correct and that the heart of the civil rights movement and the Civil Rights Act of 1964 sought race-neutral treatment. Four other justices believed that the Constitution has never been color-blind and the 14th Amendment’s equal protection clause was an affirmative plan to help former slaves to overcome 250 years of slavery.
Justice Powell’s decision, described by a reporter as “a Solomonic decision,” concluded two things. On the one hand, he agreed with four justices that race could be a factor in admissions as a remedy for centuries of racial discrimination and was a legitimate step to advance diversity. On the other hand, he concluded with the other four justices that absolute quotas could not be tolerated under the Constitution.
The critical points of affirmative action programs continue to present themselves to the court today. Urofsky’s book provides abundant analysis of the numerous cases brought to the Supreme Court throughout the last few decades. In substance, the court holds that while diversity is a compelling governmental interest, the response to injustice must be narrowly tailored under strict scrutiny (using applicable legal terms) and prove that the discrimination involved occurred to the party in the case.
The critical points of affirmative action programs continue to present themselves to the court today.
How did we get here? Urofsky divides the history of affirmative action into two parts. Part I covers the administrations from Kennedy to Reagan; Part II considers the period from Reagan to President Trump. In each of these parts, crucial critical subjects appear frequently—politics, law, education, jobs, Blacks and other minorities, women and affirmative action, reverse discrimination (where white male workers saw themselves “as the primary victims of affirmative action”) and seniority systems that give minority workers preferences.
Both the Kennedy and Johnson administrations, for example, supported soft affirmative action through congressional legislation, believing that they could not get Congress to approve broader plans. Johnson also advocated for the hard version in his famous Executive Order 11246 in 1965. We learn, however, that the Nixon administration did more for affirmative action than both Kennedy and Johnson together: “The great push for a hard affirmative action began not in the liberal administrations of John Kennedy and Lyndon Johnson but under the unlikely leadership of Richard Milhous Nixon.”
The Carter administration backed plans that used goals rather than quotas and required that minority business enterprises would get 10 percent of appropriations for governmental works. At the time, this M.B.E. requirement was attacked as a violation of the equal protection clause. In 1980, the Supreme Court, in a 6-to-3 decision, upheld the M.B.E. mandate as a legitimate public policy.
The debate continued during the presidencies from Reagan to Trump, and the book details the issues from 1981 to today. Urofsky concludes in his last chapter: “If current trends continue, it will take 228 years for the average middle-class black family to reach the same level of wealth that white families have today.”
Does justice require that a particular person show that he or she has suffered discrimination, or can the person demonstrate that he or she is a member of a group (e.g., Black people) that have experienced discrimination for centuries? Critics of affirmative action plans argue that they are public policies that are neither fair nor logical when they compensate minority groups for ills suffered by ancestors at the expense of innocent, non-minority groups today. This argument may seem reasonable to many. But this book makes clear that results of centuries of racial discrimination against Black individuals because they are members of a group still amounts to injustice to this individual today in his or her job, education or housing.
Professor Urofsky focuses on affirmative action in education and jobs and touches only briefly on its role in housing. In addition, this reviewer would have found a bibliography a useful tool.
This book challenges the reader to think about decisive social justice issues and clearly lays out the arguments that we continue to struggle with today. Regardless of where one comes out on topics such as “soft” versus “hard” affirmative action, discrimination is pervasive today, and it will take many years to address the injustice that affirmative action seeks to resolve.
This article also appeared in print, under the headline “An unending argument,” in the September 2020, issue.
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