Obama and Race Consciousness

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Affirming Affirmative Action and the Obama Administration: A Review Essay

William M. Leiter

Desmond S. King & Rogers M. Smith, Still A House Divided: Race and Politics in Obama’s America,  377 pp. Princeton University Press, 2011.

Michael Tesler & David O. Sears, Obama’s Race: The 2008 Election and the Dream of a Post-Racial America, 200 pp. The University of Chicago Press, 2010.

Daniel Sabbagh, Equality and Transparency: A Strategic Perspective on Affirmative Action in American Law, 257 pp. Palgrave/Macmillan, 2007.

Jody Feder, Kate Manuel, Julia Taylor, Survey of Federal Laws Containing Goals, Set-Asides, Priorities, or Other Preferences Based on Race, Gender, or Ethnicity, 39pp. Congressional Research Service, April 11, 2011

The President’s Agenda and the African American Community, 44pp. The White House, November, 2011

            At the core of King & Smith’s Still a House Divided is the view that the activists of the  major parties are currently divided in their racial attitudes: Democrats espousing race-conscious programs including those labeled affirmative action;  Republicans wedded to color-blindness. These authors trace racial policy attitudes throughout American political party history  (relying in large measure on party platforms), and conclude that until the 1970s, racially liberal and conservative attitudes (color-blindness regarded as conservative) divided the parties internally, as compared with the interparty demarcation that exists today.  Despite this racial politics split, “compromises” have allowed for the creation of a variety of federal race and ethnic-conscious federal undertakings.[1]  Various segments of this book treat the effects of this racial politics cleavage in the realms of employment opportunity, voting rights, housing accessibility, educational vouchers, criminal law, and immigration.

Regarding these race-conscious “compromises,” the Congressional Research Service -- in its 2011 Survey of Federal Laws Containing Goals, Set-Asides, Priorities, or Other Preferences Based on Race, Gender, or Ethnicity -- has provided the public with an up-to-date kaleidoscopic, eye-crossing, summary portrait of the existing 272 federal affirmative-action statutes. Save for a few exceptions, this Survey does not include the multitude of affirmative-action administrative regulations that take on the force of law. Compounding this inexplicable omission, the Survey fails to cover very major statutory sources of federal affirmative action, and their amendments, namely, the Civil Rights Acts of 1964 and the Voting Rights Act of 1965.

            King  & Smith note that President Obama supports race-conscious undertakings, but  his commanding theme has been universalistic—his insistence that his policies are meant to benefit all Americans for (as Obama has proclaimed at a number of Hispanic conferences) Todos Somos Americanos! These authors do not quarrel with universalism, but they fault Obama for inadequately informing and teaching the public about the essential need, benefits, and costs of race-conscious programs.[2]  They believe increased race-conscious undertakings are imperative as the socioeconomic condition of too many African Americans is desperate.

            In November, 2011, the White House hosted an African American Policy in Action Leadership Conference, and coincident with that meeting published The President’s Agenda and the African American Community. That document details how the Administration’s policies have been of particular assistance to African Americans (An emphasis encouraged in King and Smith’s  Op-ed piece in the New York Times of September 3, 2011, entitled  On Race, The Silence is Bipartisan.) Illustrative of the President’s Agenda presentation was health care. The document states that “For African American families, The Affordable [Health] Care Act, represents the most significant step forward ending the disparities [in health between blacks and others] since the passage of Medicare and Medicaid in 1965.” Nevertheless, the major theme of the The President’s Agenda and the African American Community is that the Administration’s policies are designed to assist all Americans. The abundant race/ethnic-conscious, affirmative-action programs –particularly those of the Obama Office for Civil Rights (OCR) in the Department of Education and the Civil Rights Division of the Justice Department--are given but scant attention. OCR has blanketed the country since 2009 with recommendations as to how the educational establishment (both higher and K-12) should facilitate the racial and ethnic diversification of student bodies.[3]  Investigations have been undertaken and settlements reached to overcome OCR-alleged negative disparate impact restricting minority educational opportunity in K-12.[4] OCR has attempted to strengthen the role of female sports under Title IX,[5] and lessen the evidence needed by females to prove sexual harassment on campus.[6] The Obama-selected leadership of the Civil Rights Division prides itself in connection with the abundance of suits undertaken to quash disparate-impact activities alleged to adversely affect minorities in their banking, employment, and voting activities.[7]  

The President’s Agenda document totally neglects other heavy guns of affirmative action.  The Equal Employment Opportunities Commission, and the Office of Federal Contract Compliance Programs are not even mentioned  although the policies of these units have conformed with what King and Smith find to be the “general strategy” of the Obama Administration in the employment arena: to stress “race-neutral means chosen on race-conscious grounds.”[8] In housing, King and Smith conclude that “more than any administration in decades,” the Obama Administration “pushed for race-conscious placing of new units and race-conscious marketing in pursuit of more racially-integrated housing.”[9]

            One can sympathize with an Obama reticence to conform with King & Smith’s call for a full-throated advocacy of race-conscious policies. Tesler & Sears in their volume, Obama’s Race: The 2008 Election and the Dream of a Post-Racial America, argue that most white Americans are racial “resenters” in that they view blacks as wanting and getting more than they deserve  given their supposed failure to conform with the values of hard work, abstinence, and the like. Why then did Obama win in 2008? To Tesler & Sears, the victory was a function of solid minority and white liberal support, along with the aid of those on the lower end of racial resenter scale who were distraught over the economy and Iraq. These authors conclude  that the  “two sides of racialization—that is, racially resentful opposition to and  racially liberal support for Barack Obama—resulted in a considerably larger influence of racial attitudes on the presidential vote in 2008 than in any other campaign in modern history,”[10]  Throughout, Tesler and Sears rely on extensive polling  including: cross-sectional, time-series surveys conducted by a unit of the University of Michigan over several presidential and midterm elections; and  2007-08 election year focus group  interviews involving many thousands. Sears and Tesler employed the results of panel interviewing continued during the first Obama Administration year to determine that the racial resenters of the 2008 campaign period tended to fault the President’s policies.[11] (1-9, 11-74; 26-28; 158-159).

            Limiting Obama’s potential for U.S. affirmative action advocacy is that policy’s modus operandi: (1) affirmative action in the United States targets societal bias (as manifested in public and private action), not individual malefactors; (2) it mandates race, ethnic, and gender-conscious remedies for the disproportionately-adverse effects -- the so-called disparate impact -- of societal discrimination on protected groups, whether or not specific discriminatory intent on the part of individual defendants can be isolated; (3) it seeks to integrate institutions by race, ethnicity, and gender. How can the public be convinced to support programs based on the assumption of discrimination?  Affirmative action was created in the 1960s to benefit African Americans. Why have so many groups been added to the benefit role—Tongans, Samoans, Pakistanis, Asian Indians, and so on?  Also limiting presidential affirmative-action advocacy are the challenges posed by Daniel Sabbagh’s  Equality and Transparency: A Strategic Perspective on Affirmative Action in American Law. The thrust of this volume, in addition to its sophisticated analysis of the theories supportive and critical of affirmative action, is to expose the subterfuge he finds associated with affirmative action administration.  Affirmative action’s dissimulation which he “highlights” includes: the distinction between quotas and goals often made by government to support the merit of affirmative action; the notion that much affirmative action is voluntarily undertaken by private business; and the current diversity mantra of affirmative action. To Sabbagh, both goals and quotas are equally onerous when they involve the denial of non-protected group rights. Much of the affirmative action undertaken in private business is not voluntary, but is pressured into being by the threat of endless governmental and private law suits. And affirmative action’s new mantra of diversity invidiously equates culture with race/ethnicity and has the potential of dividing rather than unifying society, contrary to the Obama exhortation of todos somos Americanos.[12]

As the 2012 election loomed larger, President Obama forcefully espoused some variations of affirmative action’s themes. He exercised his clemency authority to postpone the prosecution of young illegal immigrants of good character. “These are young people,” the President said of the covered group which is largely of Hispanic origin, “who are American in their minds…studied hard, worked hard, maybe even graduated at the top of their class—only to suddenly face the threat of deportation….”[13] At the 2012 Barnard Commencement, the President focused on the female underrepresentation in the corporate board room and in Congress, while urging women to: “Fight for your seat at the table. Better yet, fight for a seat at the head of the table.”[14] The diversity mantra was emphasized in the presidential  Executive Order 13583 of August, 2011 calling for a coordinated approach to augment diversity and inclusion in the federal executive branch. “Our nation,” the President said in the Order, “derives strength from the diversity of its population….We are at our best when we draw on the talents of all parts of our society, and our greatest accomplishments are achieved when diverse perspectives  are brought  to bear to overcome our greatest challenges.” During in the initial years of his presidency alone, Obama sought to emphasize his affiliation with the ethnic and gender diversity mantra through federal nominations which included: two female Justices, one of which was an Hispanic; the first female Chinese, the first Korean, and the first Vietnamese judges for the district courts; and the only Asian appellate court judge. Some 44% of district court nominees and 32% of appellate court nominees were females and three female commissioners were nominated to the Equal Employment Opportunities Commission.[15] The President also appointed the first black administrator of the Environmental Protection Agency,  the first black administrator of NASA, and the first black Attorney General.[16]

Harvard law professor Randall Kennedy asserted that “in no previous administration have the most desirable positions in the federal government been more accessible to people of color than in the Obama administration. Obama has not only elevated himself to the highest office in America. He has also elevated a whole cadre of people of color who, strengthened by the certification and experience they receive from stints in his administration,  will undoubtedly emerge as key actors in local and national politics for decades to come.”[17] Additionally, the President helped to significantly augment the financing and staffing of Justice’s Civil Rights Division which, as noted, has battled against disparate –impact barriers and for affirmative action in voting, housing, and  education  (along with Education’s Office for Civil Rights).  The President’s Office of  Solicitor General at the Supreme Court level, has attempted to advance affirmative action,[18] in connection with employment opportunities[19]  and higher education.[20] The President has fulsomely praised the Financial Reform Act of 2010.[21] The Act reportedly requires the creation of some thirty different minority and female inclusion offices in such places as the Federal Reserve, its regional banks, the FDIC, the federal Housing Finance Agency, The National Credit Union Administration, the SEC, and the Controller of the Currency.[22]  

The authors of Still a House Divided,  Professors King and Smith (along with Philip Klinkner) reported that the 2008 Obama  campaign focused little on race because of the assumption that  advocates of race-conscious policies would be more sympathetic to the Obama candidacy than to that of his opponent, while advocating affirmative action  threatened to alienate potential Obama supporters.[23] It would be difficult to argue that the Obama Administration has not attempted to satisfy those who, in 2008, felt that he would support race-consciousness.
Copyright  © 2012. All rights reserved. 

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[1] Desmond S. King & Rogers M. Smith, Still a House Divided: Race and Politics in Obama’s America (Princeton University Press, 2011), 3-29.

[2] Id at 10, 216, 288.

[3] Sam Dillon, U.S. Urges Campus Creativity to Gain Diversity, New York Times, Dec 3, 2011, Section A, p. 1

[4] Lesli  A. Maxwell, OCR Pace on Probes Quickens, Education Week, Dec 14, 2011, p. 1.

[5] U.S. Dept of Education, OCR, Letter on Title IX, Apr 20, 2010.

[6] Peter Berklowitz, Sex Smears and the Rule of Law, Wall St. Journal, Feb 4, 2012.

[7] Devlin Barrett, U.S., Texas Clash Over Voter-ID Law, Wall St. Journal, July 10, 2012.; Thomas E. Perez, Civil Rights in 2011 and Beyond, 54 How L.J. 425, Winter, 2011

[8] King & Smith, Still a House Divided, 35.

[9] Id at 142.

[10]  Michael Tesler & David O. Sears, Obama’s Race: The 2008 Election and the Dream of a Post-Racial America (University of Chicago Press, 2010), 6.

[11] Id at 1-9, 11-74, 26-28, 158-159.

[12] Daniel S. Sabbagh, Equality and Transparency: A Strategic Perspective on Affirmative Action in American Law ( Palgrave/Macmillan, 2007), 116-168.

[13] U.S. The White House, Office of the Press Secretary, Remarks by the President on Immigration, June 15, 2012.  

[14] U.S., The White House, President Obama Speaks at Barnard College Commencement Ceremony, May 12, 2012.

[15] Joel William Friedman, The Impact of the Obama Presidency in Civil Rights Enforcement in the United States, 87 Ind. L. J. 349-366, 354-58.

[16] Randall Kennedy, The Persistence of the Color Line: Racial Politics and the Obama Presidency (New York: Pantheon Books, 2011), 265.

[17] Id.

[18] Joel William Friedman, The Impact of the Obama Presidency in Civil Rights Enforcement in the United States, 87 Ind. L. J. , 349-366, 358-366.

[19] Amicus Brief for the United States Supporting Vacatur and Remand in Ricci v. DeStefano , The United States Supreme Court, Nos. 07-1428 and o8-328, 2009.

[20] Amicus Brief for the United States Supporting The University of Texas in Fisher v. Texas in the United States Supreme Court, No. 11-345, 2012.

[21] U.S., White House, Remarks by the President at  the Signing of Dodd-Frank Wall Street Reform and Consumer Protection Act, July 21, 2010.

[22] Diana Furchgott-Roth, How Obama’s Gender Policies Undermine America ( Encounter Books, 2010), 1-47.

[23] Rogers M. Smith, Desmond S. King, & Philip A. Klinkner, Barack Obama & American Racial Politics, Daedalus, Spring, 2011, 121-135, 128.