Today’s oral argument in BAMN v. Brown before the Ninth Circuit Court of Appeals in San Francisco presented a new challenge to California’s Proposition 209 (California Constitution Article I, Section 31), in which a group of minority plaintiffs are seeking to overturn Proposition 209 and reinstate racial preferences for university admissions. As one plaintiff explained in an article appearing today in the San Jose Mercury News:
“I’d want them to establish that affirmative action is necessary,” said 24-year-old Gabriela Galicia, a plaintiff in the case who has put off applying to Berkeley’s law school because she worries about the overall exclusion of Latinos in the UC system. “They need to change it for everyone to be on the same playing field.”
Putting aside for the moment the obvious questions of how granting racial preferences to some groups and not others puts “everyone . . . on the same playing field,” or how failing to apply gives this plaintiff standing to challenge admissions policies, or how she would be harmed by not sitting amongst other students of her own race in a law school classroom, her understanding of affirmative action illustrates the long road that the phrase “affirmative action” has traveled since it was first put to paper.
John F. Kennedy coined the phrase “affirmative action” in Executive Order 10925 nearly 51 years ago on March 6, 1961. In that EO, he established the Equal Employment Opportunity Commission. Among other provisions, the EO stated:
[I]t is the plain and positive obligation of the United States Government to promote and ensure equal opportunity for all qualified persons, without regard to race, creed, color, or national origin, employed or seeking employment with the Federal Government and on government contracts; [emphasis added]
And the phrase “affirmative action” makes its first appearance here:
The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.[. . .] [emphasis added]
(Proposition 209, of course, uses language nearly identical to Kennedy’s EO 10925 in discussing its aims: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting [. . .]”.)
Thus, “affirmative action,” which at one time meant that the government should work toward the eradication of racial preferences, now clearly signifies a program in which the discrimination between people of different races is actively promoted.
The plaintiffs in BAMN v. Brown are unapologetic about their bald preference for racial discrimination. In their view, apparently, racial discrimination is not in itself an evil worth attention. What disturbs them is that the current imposition of equal treatment produces a deficiency of equal outcome: since the institution of Proposition 209, they argue, fewer blacks and Hispanics are entering the UC system. This, indeed, is a problem that bears scrutiny and attention, but BAMN readily acknowledges what the real problem is:
The latest lawsuit specifically targets the UC system on behalf of more than 40 black and Latino students, many of whom graduated from high schools in Los Angeles and Oakland that don’t offer the type of programs that ready them for UC’s rigorous admissions standards. [Emphasis added.]
In other words, presuming that the UC’s admissions standards bear some rational and useful relationship to subsequent university performance, the real problem is not so much that the UC admissions system discriminates, but that these students are not being adequately prepared for the UC schools by the high schools that are tasked with instructing them.
In short, what these students have is a very real lack of opportunity. Given that that is a much more significant problem that clearly deserves attention and redress, it is troubling that what bothers these plaintiffs is the lack of preferences, rather than the lack of an adequate education which is the real bar to their (and others’) university (and higher) aspirations.
Of course, preferences are an easy “remedy” to administer, while providing a solid education to minority students in underperforming inner city schools is not. This is precisely why, in all likelihood, many politicians, including California’s Governor Jerry Brown (former mayor of Oakland, 1999-2007), may seem to favor it. Why actually solve the problem when you can simply appease the people who are complaining about it? Additionally troubling, under the circumstances, is that those high school students who do not have any university aspirations never see a benefit from affirmative action admissions policies, yet nevertheless will continue to suffer, throughout their lives, from the same wrongs these university applicants face in not having been taught to meet basic standards.
“Affirmative action”, in its original concept, was an invocation designed to bring attention to and to recognize that decisions based on racial preferences are demeaning to racial minorities and unworthy of a nation in which individual achievement and capability should be more important than class and the circumstances of one’s birth. If the goal really is to eradicate racism, and to make sure that minorities are given equal opportunities to succeed, today’s calls for “affirmative action” in the form of preferences are much more likely to have the opposite effect upon its minority proponents than they might wish. As William A. Henry III noted anecdotally in his book In Defense of Elitism:
I think of a Yale friend of mine who went on to Harvard Law School and the Wharton School of Finance at the University of Pennsylvania, then was on the partner track at a big New York City law firm before leaving to take a big job in New York State finance. For her first six months on the job, she told me, it was obvious that every new person she met thought she had been hired because she was a black woman, and not because she had the best resume in the room. [. . .] Other black professionals to whom I told this story agree [. . .] they all suspect it stigmatizes their accomplishments, even among fellow blacks.
So long as its proponents contend that “affirmative action” means only the institution of naked preferences instead of a concerted effort to remove real barriers to success, and so long as preferences are the only remedy racial minorities seek to the real challenges that they face, I am afraid that John F. Kennedy’s noble vision of equal opportunity will never be realized.