Also disappointing to anti–affirmative action conservatives was the survival of the disparate-impact theory of racial discrimination which stemmed from the landmark Supreme Court ruling in Griggs v. Duke Power Co.88 This theory prohibits a screening device (for instance, a standardized test) that disproportionately excludes members of a given racial group, regardless of the intent of the employer, if a judge is unconvinced that the business needs of the employer justifies the screening device in question. Detractors attack this theory on two grounds. First, it is race conscious. It demands that employers take affirmative steps to avoid what a judge deems to be avoidable negative collateral damage that disproportionately falls upon racial minorities. With its group-based, statistical inquiry, which disavows reliance on a finding of racial intent, the disparate-impact model of discrimination implicitly validates demographic proportionality as an acceptable presumptive baseline against which to determine the legitimacy of employer selections. A second objection is that the disparate-impact theory puts pressure on employers to avoid any substantial disproportionality in hiring (even if that means choosing suboptimal candidates) to avoid having to justify screening devices to federal judges (who might be insufficiently attentive to the imperatives that burden entrepreneurs).89
In 1989, the Supreme Court substantially contracted the Griggs disparate-impact doctrine.90 It required more specificity on the part of plaintiffs in terms of identifying precisely offending selection devices. It reallocated the burden of proving that challenged selection devices are “necessary.” And it diluted the requirements of the business necessity defense. The aggressiveness of the Court’s push-back against its own previous disparate-impact jurisprudence generated internal opposition that was unusually pointed. Dissenting, Justice Blackmun (joined by Justices Brennan and Marshall) wrote that observers should well wonder whether the Court “still believes that race discrimination—or, more accurately, race discrimination against non-whites—is a problem in our society, or even remembers that it ever was.”91 The Court’s turnabout also generated a legislative response. Congress passed a law that negated each of the Court’s revisions. President George H. W. Bush vetoed it, however, complaining that it created “powerful incentives for employers to adopt hiring and promotion quotas.”w Enemies of affirmative action cheered, sensing an opening for a dramatic rollback of doctrines facilitating or even permitting minority-friendly racial selectivity. Once again, however, they encountered frustration as President Bush subsequently acceded to a legislative compromise.92 The deal did dilute the Griggs doctrine. But it also gave that doctrine a congressional imprimatur that it had never had before.93
THE ANTI–AFFIRMATIVE ACTION BALLOT INITIATIVE
During the first quarter century of the struggle over affirmative action, the fighting took place almost exclusively among insiders in academic offices, judges’ chambers, and government bureaucracies. These actors were influenced by their perceptions of public opinion. But public opinion did not make itself known through its paradigmatic act—voting. That changed in the early 1990s when opponents of affirmative action attacked it in California by revising the state constitution through a ballot initiative. Under California law, the state constitution can be changed by securing a sufficient number of signatures within a given period to place a proposition before the voters and obtaining a sufficient number of votes to add the proposition to the state constitution. The organizers of the anti–affirmative action ballot initiative garnered enough signatures in 1996 to put their initiative on the ballot. The California Civil Rights Initiative (CCRI), also known as Proposition 209, declares in pertinent part: “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.”94
The anti–affirmative action forces had already won a big victory the previous year when the Regents of the University of California passed a resolution barring race as a factor in selecting students for admission to the university. Proposition 209, however, promised to sweep far more broadly and permanently.95 Not only would it bar racial considerations from public-education admissions decisions as a matter of state constitutional law (as opposed to an administrative decree that could be rescinded with relative ease), but Proposition 209 also portended the end of racially targeted recruitment and financial aid. Furthermore, Proposition 209 extended beyond education to bar any form of race-targeted assistance in public employment or contracting.
On November 4, 1996, 54.6 percent of the California electorate voted in favor of Proposition 209. Among whites that approval was 63 percent, among Asian Americans, 39 percent; among Latinos, 24 percent; and among African Americans, 26 percent.96
Two features of the campaign for Proposition 209 are especially pertinent.97 First, it came to the fore in California and national politics at a propitious moment for affirmative action’s enemies. In the midterm elections of 1994, Republicans had made large gains, winning majority status in the United States House of Representatives for the first time in nearly three decades. In the aftermath of this landscape-changing electoral eruption, politicians of all stripes sought to tap into the volatile sources of the Republican landslide, including anxieties and grievances common among white men, many of whom viewed affirmative action as threatening and unfair. Among those most interested in harnessing this discontent was the Republican governor of California, Pete Wilson. As a state legislator, mayor of San Diego, and United States senator, Wilson had long been content to let affirmative action alone. But in 1996 when Wilson set his sights on the White House, he tried to use opposition to affirmative action as a launching pad. Endorsing Proposition 209, he asked Californians “to once again send East … a message about fairness.…I ask you to join me in changing the law to restore fairness, to make real again that American dream.”98
Bob Dole of Kansas, leader of the Republicans in the Senate and the eventual Republican presidential nominee that year, had also been content to leave affirmative action alone. Indeed, he had been one of those who, in the 1980s, had blocked the Meese faction of Reagan Republicans from removing racial proportionality goals from the Federal Contracts Compliance regime. Subsequently, however, Dole’s priorities shifted: instead of defending race-conscious efforts to remedy the effects of past racial injustices, he became intent on attacking them, proposing legislation (never enacted) that would have done at the federal level what Proposition 209 did at the state level. On the Senate floor, he insisted that “race-preferential policies, no matter how well-intentioned, demean individual accomplishment. They ignore individual character. And they are absolutely poisonous to race relations in our great country.”99
President Bill Clinton felt torn while running for reelection in 1996. On one hand, an essential element of his electoral coalition—African Americans—overwhelmingly supported affir- mative action. He certainly wanted to avoid angering this sector of his base. It seems, moreover, that Clinton personally supported affirmative action with authentic enthusiasm, a sentiment that many blacks appreciated. On the other hand, Clinton was also determined to avoid electoral punishment from voters favoring the initiative. He resolved this dilemma by distancing himself from the fight. Although he opposed Proposition 209, he expended little energy actively resisting it, anxious to prevent the dispute from threatening his hold on California’s large cache of Electoral College votes.
A second notable feature of Proposition 209 has to do with its leadership. The single person most responsible for its success in California and its dissemination to other states is a black man, Ward Connerly.100 What Clarence Thomas is to affirmative action in the federal courts, Ward Connerly is to affirmative action in state ballot initiatives. Connerly did not write Proposition 209; that distinction belongs to two white academics, Thomas Wood and Glynn Custred. But when Connerly accepted their invitation to take over the leadership of the initiative, he brought to it impress
ive skills as a speaker and organizer, a formidable network of allies (particularly Governor Pete Wilson, with whom he had a close friendship), and, very importantly, his status as a black.x Although Connerly champions color blindness, his colleagues in the Proposition 209 campaign were anything but color blind in making him its spokesman and public face. They saw his blackness as a distinct plus and proceeded to use it to their advantage. His race provided a dramatic attraction to their cause; the anomaly of an African American fighting affirmative action attracted valuable publicity. Connerly’s race, moreover, provided moral insulation for the campaign. With him championing Proposition 209, framing it as a movement of white resentment and retaliation became more difficult. Commenting on the recruitment of Connerly, one of the proposition’s organizers observed: “To be blunt, the fact that he was black was very important. It’s like using affirmative action to defeat affirmative action.”101
After prevailing with Proposition 209, Connerly founded the American Civil Rights Institute (ACRI), an anti–affirmative action think tank and lobbying operation that has enabled him to publicize his message nationally and to try to achieve in other states what he succeeded in accomplishing in California. Initially, he won a string of victories. In 1998, voters in Washington State approved a statutory version of Proposition 209. Then voters approved initiatives in Michigan (2006), Nebraska (2008), Arizona (2010), and Oklahoma (2012). Over time, though, opponents became more adept at countering Connerly’s campaigns. They challenged the veracity of signatures, the wording of initiatives, the propriety of out-of-state influences, and the substantive merits of the anti–affirmative action position. In the face of strong opposition, initiatives in Missouri (2008) and Oklahoma (2008) failed to garner a sufficient number of signatures to be placed on the ballot (though subsequently voters in Oklahoma did approve an initiative). In Colorado (2008), the initiative made it to the ballot but was rejected by the electorate.y 102
Throughout the 1990s and the first decade of the twenty-first century, the trench warfare over affirmative action continued unabated, with victories giving way to frustrations and disappointments on both sides. In 1995, in Hopwood v. University of Texas Law School, the federal Court of Appeals for the Fifth Circuit invalidated on broad grounds a challenged racial affirmative action program. The court essentially banned the use of race in admissions in public higher education in the states it covered. This constituted a direct repudiation of Justice Powell’s landmark Bakke opinion. The Fifth Circuit acknowledged as much but justified its action by saying that Powell’s opinion was not binding insofar as it represented the views of only one Justice. When the Supreme Court declined to review this decision, the Fifth Circuit’s rejection of Powellian affirmative action became binding federal law in Texas, Mississippi, and Louisiana.
For a while, Hopwood seemed to augur a thoroughly bleak future for affirmative action, at least as practiced in higher education. But then came two surprises. First, the Texas legislature, disturbed by the prospect of a dramatic downturn in Latino and black students in the state’s flagship university, enacted a measure under which the top 10 percent of graduating students at any high school gained automatic admission to the state’s public university system, which includes the University of Texas (UT). This measure is applicable to all students, regardless of race, and is thus often referred to as a “race neutral” program. This program, however, was not only foreseeably advantageous to Latino and black Texas high school students desiring entry into UT; its openly acknowledged central purpose was to assist this cadre of students. Rural poor whites are deliberately and substantially assisted by the Top Ten Percent Law as well. This coalition of beneficiaries cements a powerful, albeit unusual, political coalition in that the reform is backed by Democrats from minority urban districts and Republicans from white rural districts. The fact remains, however, that a “but-for” cause of the Top Ten Percent Law was its acknowledged benefit to racial-minority applicants.
The intended racial consequences of the Top Ten Percent Law stemmed mostly from two factors. It diminished substantially the exclusionary effect of standardized testing: if you are in the top 10 percent of your high school class, you obtain automatic admission to UT regardless of your test scores. Since the test scores of black and Latino students typically lag behind those of white peers, negating test scores strongly and purposefully assists the racial minorities. Second, the Top Ten Percent Plan implicitly but purposefully uses widespread racial separation in secondary schooling to create the functional equivalent of racially distinct pools of candidates.
Absent a program attentive to the vulnerabilities of blacks and Latinos, many white students would be even more fully advantaged insofar as applicants in the middle of the class at an academically strong (typically predominantly white) high school might possess more attractive profiles (under certain conventional standards) than applicants in the top 10 percent of the class at an academically weak (typically predominantly black or Latino) high school. The Top Ten Percent Plan is thus a potent equalizer. It offers the same wonderful benefit—automatic admission to the University of Texas—to the best students at all high schools, notwithstanding variations in the quality of those schools.
The Supreme Court delivered a second big surprise after Hopwood. Proponents of color-blind constitutionalism had long anticipated burying Powell’s Bakke opinion and thought that the moment for doing so had arrived when the Court decided to consider challenges to affirmative action at the University of Michigan.z In Grutter v. Bollinger, however, the Court embraced (and indeed enlarged upon) Powell’s opinion. The Court did so, moreover, in an opinion written by one of its conservative members, Sandra Day O’Connor, who had previously displayed a deep distaste for racial affirmative action.
THE CURRENT STATUS OF AFFIRMATIVE ACTION: AMBIVALENCE TRIUMPHANT
The status of affirmative action remains unsettled, with antagonists trading victories and defeats. After the Supreme Court upheld racial affirmative action at the University of Michigan, voters in Michigan did away with it through a Ward Connerly–inspired ballot initiative. At the same time, authorities at the University of Texas reinstated race-plus affirmative action, layering it on top of the Top Ten Percent Plan enacted after the Hopwood decision. That new affirmative action program was challenged in a lawsuit, Fisher v. University of Texas. Lower federal courts upheld the program. The Supreme Court, however, is likely to invalidate it. One line of attack is that racial affirmative action is gratuitous at institutions that are able to obtain a minimally sufficient amount of diversity through so-called race-neutral means. By layering an explicit racial affirmative action plan on top of the Top Ten Percent Plan, the argument runs, university authorities place an excessive, hence constitutionally impermissible, focus on race. Another line of attack is aimed at racial affirmative action in any context. This argument aims to overturn the Court’s holding in Grutter. That decision, after all, was only 5–4 and was written by Justice O’Connor, who has retired and been replaced by someone (Justice Alito) with even more conservative views. A third line of attack targets explicit racial affirmative action and the Top Ten Percent Plan. This argument denies that the plan is “race neutral.” It posits that insofar as a racial motive animates the plan, it is racially discriminatory notwithstanding the absence of any express facial reference to race.
The Supreme Court heard oral argument in Fisher on October 10, 2012, a few weeks before the presidential election. One might have thought that the affirmative action controversy would be discussed at least a bit in the final weeks of a campaign that would decide whether, for the first time, Americans would reelect a black president. As it turned out, however, the controversy never became an issue, at least not openly. In the presidential debates, neither Mitt Romney nor Barack Obama alluded to affirmative action at all.
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aNote the limited nature of the Civil Rights Act. It says nothing about voting or jury service. Blacks and other targets of racial discrimination would have
to await subsequent legal protection, most notably the Fourteenth and Fifteenth Amendments to the Constitution (in 1868 and 1870, respectively), for relief from state-enforced racial exclusions in these areas.
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