America is now so sufficiently "post-racial" that affirmative action is no longer needed as corrective action. So ruleth the U.S. Supreme Court.
In a series of recent cases filed by police and fire departments, school districts and colleges, the Court, in closely-contested rulings, has weakened or even wiped out affirmative action's race-conscious policies designed to overcome and rebalance our history of discrimination in employment and admissions. Reflecting the new conventional "wisdom" that affirmative action is itself discriminatory, Chief Justice John Roberts wrote in a 2007 decision, "The way to stop discriminating on the basis of race is to stop discriminating on the basis of race."
As if! Clearly, not everybody read the ruling, because an awful lot of discriminating -- white against black, mainly -- is still going on. (Similarly, the Court has attacked the 1965 Voting Rights Act on grounds that its protections are no longer required in our post-racial society.)
Proof that racism still operates, and operates to a virulent and institutionalized degree, is provided in the U.S. Department of Justice's recent report on the police practices and -- astonishingly -- the court system of Ferguson, Missouri, prepared after its investigations into the police killing last summer of black teenager Michael Brown (also here, here and here).
In essence, the DOJ report describes a shakedown operation whereby a mainly white police department, upheld by a mainly white judiciary, treats its mainly black population as a source of municipal revenue, extracted via arbitrary fines, arrests and jailings for traffic violations, jaywalking and other concocted infractions of the law. One example: A black man cited for pedophilia because he was napping in a car near a park full of children, and because he gave his name to the arresting officer as "Mike" instead of "Michael." (This man subsequently lost his job as a federal contractor.) This incident is by no means isolated; the report makes clear many blacks in Ferguson have had similar experiences. Nor is Ferguson's racism an isolated case, as President Barack Obama noted in commenting on the report; it afflicts many other jurisdictions around the country.
And now comes news of racial retrenchment in another venue: At the University of Oklahoma, a fraternity, Sigma Alpha Epsilon, clarifies its racist policy -- chanted by members in party mode on a bus, caught on video that went viral -- to wit, that no black man (the n-word is used) will ever be allowed into their hallowed cohort, with the kicker added that lynching is permitted to prevent such contamination.
Wasn't racism -- if it existed at all in post-racial America -- supposedly subtle? Not only is there nothing subtle about the jaw-dropping examples cited above, there is something in them of the antediluvian -- the slave-master exerting his "rights" over his property, up to and including the right to lynch.
What's saddening is this: There was apparently no one in either setting -- in all of Ferguson or the fraternity -- who, either from a position of authority or as a peer, tried to call a halt to the racist practices as they took place. No one questioned the rightness or wrongness of the outrageousness of what they were doing -- least of all Ferguson's judges, who after all rule on right and wrong. Again, astonishing.
Granted, in the case of the shameful fraternity action, kudos go to the University's president David Boren for expressing heartbroken disgust and shutting down the campus' SAE house. And it is cheering -- very -- to see the vast public outrage and revulsion expressed at both the Ferguson and fraternity cases: What a lot of race-conscious people we have. But one wonders about these same people: If a racist act were performed in their midst, how many would have -- in that moment -- resisted peer pressure or bucked their superior's orders and actually stuck a stick in the proceedings? I'm just saying: A race-conscious counter-force is needed to battle racism as wrong, immoral, unethical -- on the ground, in its face, all the time.
Which is why we still need affirmative action: Inasmuch as the infection of racism still exists, then affirmative action and its antibiotic of race-consciousness is needed as long as that infection persists, which is to say: probably forever. (The infection of sexism also persists, witness the increased rates of rape and sexual harassment.)
After all, it is the role and responsibility of an affirmative action officer to delineate the problematic environment, outline steps to reform it and then go out and enact those steps. For example, regarding Ferguson's police department, any affirmative action officer worth his/her mandate would have noted the department's almost all-white ranks (of 54 officers, only four were African-American), juxtaposed against the 67 percent black community it serves, and called out, "Whoa!"
I speak as a former practitioner. To achieve parity between a department -- police or other -- and the community is serves, you'd review job qualifications and tests for bias, set hiring goals (goals, not quotas), get sign-on from city leadership and personally guarantee community groups that the city is a fair employer. With new hires in place, conferring a better race and gender balance, you'd then give The Commandments to all: Thou shalt not express racist or sexist epithets, thou shalt not harass each other, etc. Rinse and repeat, many times.
If a new hire doesn't perform, you back the department's decision to terminate; if any employee meets with discrimination, you fix the problem, invoking federal or state procedure or, as I had to, create it (with a no-harassment policy.) In this way, peace -- and parity -- reign.
But it seems nothing of the kind operated in Ferguson, because, once again, we were in post-racial times.
And it seems the SAE fraternity operates completely oblivious to the advances achieved by the civil rights movement this last half-century. (That SAE was founded in the South just after the Civil War may be relevant.) Washington Post columnist Eugene Robinson, who is African-American, after calling the frat brothers "soft, pampered, privileged, ridiculous," indirectly makes an excellent case for affirmative action:
Let's imagine the video never surfaced. With halfway decent grades, degrees from Oklahoma's flagship university and the connections that Sigma Alpha Epsilon's old-boy network could provide, the boys on that bus could be expected to end up in executive positions with the power to hire and fire. What chance would an African-American job applicant have of getting fair consideration?
This contrasts with the recent terrorist killings in Paris of cartoonists at the newspaper Charlie Hebdo for racist depictions of the Prophet Mohammed, which triggered a massive public response -- "Je suis Charlie" ("I am Charlie") -- upholding the freedom to offend. As The New York Times speculated about national differences, the debate about free speech "could be especially acute in the United States, where sensitivities to racially tinged caricatures may run higher than in places like France, where historically tighter restrictions on speech have given rise to a strong desire to flout the rules." In other words, "I am SAE," is not happening here.
Of course, it must be said that affirmative action in its latter incarnation was a fairly easy target for the Supreme Court to attack, because its practitioners did not maintain control of their narrative. Redefined by its opponents, affirmative action came to be decried for championing "preferential treatment" of "unqualified" minorities, for pushing hard-and-fast "quotas" instead of the more aspirational "goals," toward which a "good-faith effort" is made. Semantically, I was grateful my job title was equal opportunity officer: Equal opportunity is readily accepted as an all-American value, while affirmative action triggers resistance against perceived favoritism.
If affirmative action -- or, better, equal opportunity -- is to be reinstated, we need to "build it better," as the new mantra goes. And its practitioners need to keep control of their instrument. We can take heart from President Obama's speech at the 50th anniversary of the Selma march, that "we are strong enough to be self-critical."
And of course the Supreme Court needs to reverse itself on its recent decisions weakening affirmative action -- which is not likely to happen. Yet the Court left an opening, a remedy: Many of those same decisions, while doing away with affirmative action as a requirement, nevertheless leave it as an option. Let's press for that option to be exercised on all sides, in the spirit of self-criticism and self-correction.
Supreme Court Justice Sonia Sotomayor points the way. In one of those decisions -- Schuette v. Coalition to Defend Affirmative Action (2014) -- she took aim at Chief Justice Roberts' above-cited line of 2007, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
Taking exception, Justice Sotomayor wrote last year:
The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.
Which is to say: The Justice points to affirmative action, equal opportunity -- and justice.
Carla Seaquist served as Equal Opportunity Officer for the City of San Diego 1977-80, was appointed to the Governor's Task Force on Civil Rights, and received N.O.W.'s Susan B. Anthony Award. Her latest book of commentary, "Can America Save itself from Decline?: Politics, Culture, Morality," is due out soon. Also a playwright, Ms. Seaquist published "Two Plays of Life and Death," which include "Who Cares?: The Washington-Sarajevo Talks" and "Kate and Kafka," and is at work on a play titled "Prodigal."