Levelling the Level Playing Field
Plot Against Affirmative Action

By BRANDON L. WARD

A hundred years ago, W.E.B. DuBois began his classic work, "The Souls of Black Folks," with the question, "How does it feel to be a problem?"

Brandon L. Ward is president of the New York City Municipal Chapter of Blacks in Government, an employee advocacy group. He is a Mechanical Engineer with the Department of Transportation. He can be reached at brandonward@nycbig.com.

Last Nov. 7, political conservatives won an important victory: 58 percent of Michigan's voters cast ballots for Proposal 2 - the Michigan Civil Rights Initiative.

This initiative was modeled on California's 1996 Civil Rights Initiative that prohibited the state from discriminating against and granting preferential treatment to anyone on the basis of race, sex, color, ethnicity and national origin in public employment, public education and public contracting.

Oddly enough, both initiatives were being championed by Ward Connerly, the conservative black California businessman who once benefited from a state set-aside program. He decided to take his anti-affirmative action crusade to Michigan with a confusing ballot initiative. Mind you, Mr. Connerly used the "equal protection clause" of the 14th Amendment, which was passed to end discrimination against African-Americans, to attack programs aimed at helping blacks.

Started Under Nixon

Curiously enough, most people believe (wrongfully, I might add) that affirmative-action policies premised on race-based numerical quotas were the work of far-left liberals out to wreck the free-market capitalist system and unjustly discriminate against innocent white workers. But the truth of the matter is that these policies were devised during the Nixon Administration by his Secretary of Labor, George Shultz, a captain of industry and a genuinely conservative economist. After studying the predicament of black construction workers - which was that they had a rigidly imposed quota of zero participation - Mr. Shultz created the Philadelphia Plan, which called for rigid numerical quotas based upon the race of the workers.

Shultz's motivation was non-ideological except that he was committed to the proposition that all Americans should have an equal opportunity to work on construction projects that benefited from government funding. As an economist and a top-tier corporate manager, Shultz understood that without strict numerical production goals and timetables, there is no way to measure progress.

During the Reagan era of the 1980s, conservative Republicans insisted it was unconstitutional for the government to use a person's race as a factor in hiring, awarding contracts, admitting college students, or assigning students to public schools.

Orwellian Word Games

Interestingly, Mr. Connerly's deceptive plot against affirmative action is being carried out by the successful use and adoption of misleading language: Civil Rights Initiative. The irony of the misnamed proposition in Michigan is that it was the suit against the University of Michigan Law School that paved the way for the United States Supreme Court upholding the concept of affirmative action.

In a 5-4 decision, Justice Sandra Day O'Connor, writing for the majority, stated that higher education (and by extension the workplace) had a "compelling" need to consider a student's race if it was to maintain diversity in classes.

Polls have shown that the public supports affirmative action but opposes "preferential treatment." Thus, using the terms interchangeably unfairly characterizes affirmative action as preferential treatment. But truth be told, preferential treatment is a quintessential American phenomenon. After all, it's no exaggeration to say that whites are preferred in employment, housing and business opportunities. For instance, according to a September 2006 report by the city's Human Rights Commission, only 2 percent of the upper echelon of the advertising industry is black. This profile has not improved in 40 years.

No Equality in 'Separate'

The fact is, during a brief period after 1865 (Reconstruction), blacks in the South made substantial progress both economically and politically. However, the effects of a single decision by the Supreme Court in the area of race (the Plessy v. Ferguson case of 1896 established the constitutionally repugnant doctrine of "separate but equal") wiped out all the gains during Reconstruction and plunged black America into a dark night of institutional racism and terror from which we began to emerge only after the decision in the case of Brown v. Board of Education of Topeka 58 years later.

It was the latter case that provided the legal justification and ethical foundation for the elimination of racial discrimination in public accommodations and the numerous enactments of legislation in the area of housing and employment discrimination.

What does it mean for a group of people to struggle generation after generation and yet make little progress or fall behind the dominant group? For one, in the mid-20th century (before the civil rights movement) Gunnar Myrdal, the Swedish sociologist, pointed out the power of "vicious circles" of cumulative causation: self-sustaining processes in which the failure of blacks to make progress justified for whites the very prejudicial attitudes that served to ensure that blacks would not advance.

For example, during the first months of the Giuliani administration, the contract goals established under the Dinkins administration were cut from 20 percent to 10 percent. Curiously enough, in an effort to show a color-blind hiring plan, Giuliani officials changed the program name spelled out in the City Charter, "Affirmative Plan" and called it an Equal Opportunity Employment Plan; again, to convey the message of a color-blind plan.

Not-So-Benign Neglect

Unlike the Dinkins plan, the Giuliani plan did not require advertising job vacancies in any minority newspapers. Furthermore, the vagueness and unenforceability of the plan did not require agencies to develop their own plan until the latter part of Giuliani's first term in 1997.

Quite simply, there are two types of affirmative action. The first is "remedial" and the other is "preferential." Remedial affirmative action is that which was originally contained in the law creating the EEOC in 1964, giving it the right to encourage firms to engage in vigorous outreach for minorities, remedial training programs and other measures to create a pool of qualified minorities available to be hired.

The problem with this approach is that it assumes that black people are the problem - that they are all unqualified and so, if they could just be trained, then fair-minded and objective managers and business owners would select them on a nonracial basis. Hence, remedial affirmative action does nothing to guarantee that once blacks are qualified, they will be hired. That is to say, it does not attack the barriers in the system. It assumes that the system is okay and does not contain institutional racism.

Basis for Preference

On the other hand, "preferential" affirmative action assigns a preference to qualified blacks, minorities and others in order to compensate for past discrimination.

Interestingly enough, whites who argue against race-based affirmative action increasingly resemble the gambler who is caught cheating after he has bankrupted everybody else in the game. When the gambler is exposed in the act and finally confesses his crimes, instead of making restitution to the people he has robbed, the cheater promises "to play fair from now on."

Frankly, looking candidly at the Bloomberg administration (after eight years of unfair hiring and promotional practices of the Giuliani administration), not much has occurred with respect to the vexing problem of diversity in city agencies. Making matters worse, with less than a thousand days remaining in his administration's term, one gets the sense that Mayor Mike's affirmative-action policy in effect says to black employees: cross your fingers and hope for the best.