The white people who believe they are victims of reverse discrimination have a whole narrative about affirmative action. They believe it puts unqualified minorities in positions that rightfully would have gone to white people or Asians. They don’t truly care about Asians wanting to get into Harvard or other institutions of higher learning. But it fits their narrative that highly qualified students sometimes don’t get accepted because they are pitted against Black people for the nominal slots allocated to minorities.
To understand how we got to this point, we need to understand where affirmative action came from. An example of what was going on in the late 1960s and early 1970s all over the country is Asbury Park, New Jersey. Years of demands for youth programs by local Black leaders availed them not. The resort town with a thirty-percent Black population more than quadrupled its population during summer weekends due to vacationers. The jobs required to support the resorts were being given to white youth from surrounding communities instead of Black residents. The end result was seven days of rioting and destruction, with damages totaling over $4 million. All across the country, there were protests, not only of the Vietnam War but lack of funding for jobs and training, especially for minorities. Los Angeles saw twenty-thousand people, mostly Latinos, assemble in peaceful protest, only to be attacked by Los Angeles police with tear gas and batons resulting in four dead, including an award-winning journalist.
With the temperature in the high 90s, no jobs, no hope for jobs, no recreation programs, and no real indication that city fathers were listening to their concerns — the west side youth were frustrated, angry and most likely feeling a sense of hopelessness.
—Unknown Asbury Park citizen
In 1970, Griggs v. Duke Power was the first case of its kind to reach the Supreme Court. Duke Power was found to have initiated unnecessary tests, beginning the day after the Civil Rights Act of 1964, that resulted in keeping Black applicants or those seeking promotions from a number of job positions. For the first time, the court decided that “disparate impact” had to be considered instead of just intent. It was no longer enough to not intend to show racial favoritism — if the end result was racist, that was enough.
My first personal experience with what Affirmative Action was at age twelve. I was a Boy Scout in an all-Black troop. Our scoutmaster was approached by someone from the local Council with an offer that some of our members might be able to attend the upcoming National Jamboree in Lake Pend Oreille, Idaho, on a scholarship. We were a new troop and none of our members had advanced beyond Second Class. To attend the Jamboree, a scout had to reach the rank of Star Scout. There were time requirements between the achievement of the next two ranks needed (First Class and Star) which they waived. We still needed to meet all the requirements but the time restrictions were waived as otherwise there wasn’t enough time to achieve the rank. My friend Ellery Carr and I met the requirements and took a train to Idaho in July of 1969, an experience I’ll treasure for the rest of my life. We didn’t take the place of more deserving white Boy Scouts. We may have helped American Scouts look a little more inclusive to the rest of the world. Affirmative Action took many forms, some well-intended, others just for show.
Prior to the Griggs decision by the Supreme Court, there were some minor efforts in the the federal government and corporate America to be more inclusionary. Most progress in the federal government came through executive orders; for example, President Franklin D. Roosevelt issued Executive Order 8802 that was intended to prohibit racial or ethnic discrimination within the defense industry. It also established the Fair Employment Practice Committee, which extended its jurisdiction beyond defense into all areas of federal government and their contractors. This didn’t happen in a vacuum, as Roosevelt’s efforts were in response to activism by A. Philip Randolph, Bayard Rustin, and the NAACP’s Walter White. They were part of the March on Washington movement that was planning a 1941 march until Roosevelt’s order met their demands. Little or nothing has ever been accomplished to achieve equality without pressure.
In terms of education, Thurgood Marshall and the NAACP Legal Defense Fund won the Brown v. Board of Education lawsuit that theoretically ended segregation. The Supreme Court however, deigned it be implemented across the nation “with all deliberate speed,” which translated to take all the time you like, which most states did. It wasn’t until the 1970s that the government got serious about enforcing the law, using consent decrees to mandate change. In 1978, the first major reverse discrimination case, California v. Bakke, found that colleges cannot use racial quotas, but race can be considered as a factor in admissions. That case was followed by Gratz v. Bollinger, where white students sued the University of Michigan, saying using race or gender as a consideration was a violation of the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964. It always seems ironic to me when white people claim their civil rights are being violated in the midst of trying to maintain a superior position. After years of battles in the courts, a majority of Michigan voters struck down affirmative action in public education, employment, and contracting in 2006.
In 2008, a remarkably average student, Abigail Noel Fisher, sued the University of Texas, claiming the school shouldn’t use race to place Black and Hispanic students (with better grades than she had) over whites and Asian Americans. She ultimately lost in 2014, and the Michigan ban on affirmative action was thrown out in 2012 because it was unconstitutional, but affirmative action in education is hanging on by a thread. As the courts have been increasingly filled by idealogues, it may be eliminated at any time. A 2014 lawsuit against Harvard filed by “Students for Fair Admissions” which purportedly supports Asians but is funded by a white conservative, Edward Blum, has filed dozens of lawsuits challenging affirmative action in defense of the rights of white people.
In contracting, companies that did or wanted to do business with federal, state, or local governments had to find ways to work with or around ordinances requiring a certain level of minority participation. Forty-seven states plus Washington DC and Puerto Rico have state-level Minority or Women Business Enterprise (MWBE) development programs along with most major cities. They typically require that most contracts must have bidders who are either an MWBE or contractors who have demonstrated a certain level of minority participation, typically in the ten- to twenty-percent range. This program has led to the creation and growth of many minority-owned businesses, yet it has also led to considerable fraud. MWBE Certification, a process I’ve gone through, usually requires the enterprise be at least fifty-one percent owned by a minority or a woman. In many cases, a front person associated with the bidding contractor, in the case of women sometimes a spouse, is purported to be a completely separate business when in truth it’s an extension of the family business. Sometimes minorities are set up in a corporation when in the end all they really have is a job.
In one of my careers, a partner and I established a corporation in an attempt to get business associated with the opening of the Orlando Arena prior to the debut of the Orlando Magic NBA team. The certification process by the City of Orlando MBE Dept was rigorous. Our corporation was one-hundred percent minority owned and we were interviewed by a national company to participate in the bid on the novelty merchandising contract for the Orlando Arena and other city-owned facilities including the Citrus Bowl. The joint venture, of which we were a fifteen-percent partner, was the ultimate winner, and we held that contract for several years. That partnership worked like affirmative action partnerships were supposed to work. In addition to the work in Orlando, we were invited to work at multiple events across the country which wasn’t compelled by any program, and we ultimately worked as a subcontractor at multiple events including eleven Super Bowls, multiple US Opens (tennis), and other major sporting events. We provided all the staffing in Orlando and often provided hundreds of vendors or program sellers in locations as remote as New Orleans or San Diego. We weren’t prevented from doing business on our own and ultimately had contracts at the UCF Arena and in Fayetteville, North Carolina.
MWBE contracts didn’t always work out so well. There is no good estimate as to the amount of fraud involving non-minorities posing as an MWBE. Local and even state governments don’t have the resources and the federal government typically didn’t have the will.
People still don’t take this seriously because, in my estimation, this is about minorities. If a bunch of big white companies were being defrauded, we would see some real action.
—Bertha Lewis, Black Institute
While government contracts often included MWBE requirements, they can often be waived for any number or reasons, including expediency. You can assume that any no-bid contract doesn’t include a requirement of minority participation. The bottom line is that minority participation in contracting has always been diluted by fraud and the lack of will to enforce it.
Employment has always been tricky, especially in firms not seeking government contracts. It has been public pressure, boycotts, and in some cases the desire for corporate goodwill that pushed major businesses to hire more minorities in some cases. There are certainly exceptions like Duke Power. Much of the progress in corporations has taken place due to anti-discrimination lawsuits. Many companies that hired minorities and women, did little to ensure their progress through the ranks and often refused to promote them unless forced to.
Affirmative action only ever existed because governments, schools, and employers were not inclined to let minorities in of their own volition. When a large grocery chain in the southeast opened, Black people could neither work or shop there. De facto segregation still exists in some southern school districts and in parts of New York City. The current administration has reversed course on affirmative action and now supports the idea that reverse discrimination is the real trend and that it’s the rights of white people that need to be protected.
The following is an opinion which I believe is supported by history and the facts: Affirmative action was never an altruistic attempt to improve the plight of minorities. It was a response to the pressure to increase minority participation and in essence, said we’ll give you this much and no more. Affirmative action often served as a cap instead of a goal. If a program called for fifteen-percent participation (including women mostly white), I can’t find instances there the actual participation greatly exceeded the goal. That fifteen percent was often diluted when considering the MWBE might have forty-nine percent white ownership or be a white woman.
Many white people are of the belief that affirmative action was “giving” Black people what they didn’t deserve at the expense of white people. When I want the opinions of white people, my go-to is the blog of a respected lawyer who often represents Republicans testifying before the House and Senate and can be found on Fox News and other channels talking about legal issues. He is consistent in advocating “free speech” and the comments section of his blog reflects that. It has become a safe place for those advocating not free speech but hate speech which is barely monitored. I asked for input for this article and these are some of the replies of his followers:
“You just want to flog a long dead issue in the one country that went to war to end slavery at the cost of more than half a million lives. Shame.”
“The problem is I believe in equality and I am even willing to help those in need. I will however, not take from an innocent person what is his and give it to another for no rational reason. You on the other hand would do just that.”
“I know a good deal about discrimination, more than you. To be blunt you have had it easy.”
“Affirmative action took away from some people that had nothing to do with slavery or discrimination and gave it to to another that may or may not have deserved it.”
“Affirmative action is a managerial spoils system for jobs, that operates at the expense of white male workers. However, it’s a cruel irony for those white male workers, whose wages have stagnated for decades, that the managerial regimes implementing AA have been run mostly by white men.”
“No other country has ever given so much to a minority that was discriminated against.”
Fortunately, these views aren’t representative of most Americans (I hope) and many people see things differently. Unfortunately, the individuals responding are almost all involved in the law, many of them lawyers, and mostly in positions to employ or affect the employment of others. Affirmative action was never the panacea that was intended. It was designed to only deflect pressure and never did what it was supposed to accomplish. It only provided limited employment opportunities and the pressure is ongoing. If we’ve learned anything, it’s that people cannot easily be compelled to cede power, however obtained, and rarely acknowledge past discriminatory practices and the impact on people today.
The road to improving a path toward equality will be hard but it can be done. Judging by the views listed above, we’re a long way from minorities being viewed as equals or deserving on the merits of proper representation. Changing laws as difficult as that has always proven easier than changing hearts and minds. Corporations respond to financial pressure and are conscious of their public image. Even if their motivation isn’t because it’s the right thing to do, it can still be the right thing for the business.
Colleges and universities are facing mounting pressure to never consider race in admissions. That may become the law of the land-based on current lawsuits against Harvard and Yale. Schools need to focus on their outreach and recruitment and make sure there are no neglected communities. Government contracts are dictated by policies and laws. We must put in place elected officials working for the entire country and not just a specific base. While affirmative action never accomplished its goal, with a concerted effort and continued pressure, we can get there.
Previously Published on Medium