William M. Leiter
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We the People Vol 3 is a treasure trove
for public-policy scholars as it is loaded with provocative insights and
stimulating archival research on such topics as critical judicial opinions
concerned with African-American oppression; Nixon’s civil rights contributions;
civil rights statutes of the 1960s which when implemented --Ackerman asserts-- took
the place of amendments to the U.S.
Constitution; school and residential segregation/integration; employment rights
under Title VII of the 1964 Civil Rights Act; gay rights; and the Voting Rights
Act of 1965. Nonetheless, the volume’s central thesis is problematic and the
volume’s development is lacking in critical detail.
Early
on[1], Professor Ackerman notes
that “The question before us in the early twenty-first century is how to place
the civil rights revolution. …Should we see it as a failed constitutional
moment? …Or should we see it as a paradigmatic achievement of popular
sovereignty in the twentieth century and give full constitutional recognition
to the landmark statutes and judicial precedents that mark its enduring legacy?
Later, at the end of the volume[2], the reader is informed
about the Author’s response to the aforementioned question:
This book provides only the beginning of
an answer. Most obviously, it is narrowly focused on the struggle for black
equality. I fail to do justice to social justice movements for other
minorities, for women, and for poor people. It is also a Washington-centered
book. …My ultimate excuse: ‘I have but one life to give to my country.’ So I
have concentrated on the things I do best, and on the main point: that a
bipartisan political coalition did indeed manage to harness the energy of the
civil rights movement to build a new foundation for race relations in the name
of the American people.
Ackerman’s central thesis is that American
government, by harnessing the energy of the civil rights movement of the 1950s
and 1960s, and in the name of the American people, built a new and positive foundation for Black/White race relations.
In various places of the volume, Ackerman insists that this new and positive
foundation was rooted both in the desires of the American people[3] and in affirmative action policies
developed, in large part, by what the author refers to as the constitutional
expertise and creativity[4] of administrators charged
with implementing the “super” civil rights statutes of the 1960s. These
administrators continued the emphasis of the New Deal’s reliance on
administrators to interpret and apply statutory policy, creating an
affirmative-action, government-by-numbers regimen focused on remedying the
underrepresentation of minorities and females in the better things of American
life. But Ackerman fails his readers by not adequately defining affirmative
action and by not relating how it has been extended to non-Black minorities and
females --an extension which challenges the achievement of Black equality.
Importantly too, affirmative-action policy deviates dramatically from the
popular insistencies which helped foment the civil rights acts of the 1960s.
These insistencies[5]
(which continue to be widely embraced today) focused on the equal treatment of
all; the multitude[6]
of affirmative-action programs are fixed on remedying race/ethnic/gender underrepresentation
through a variety of preferential treatments. Such inconsistency between popular views and
governmental practice provokes ideological confusion and cynicism.
Affirmative action
differs from other antidiscrimination initiatives in that (1) it targets and
seeks to remedy systemic-societal bias
(as manifested in public and private illegal action), not malefactors engaged in intentional
discrimination prohibited by law ; (2) in specific programs,
or as major portions of universal programs, it mandates race, ethnic, gender,
sexual orientation, and disability-conscious remedies for the statistical
disproportionately-adverse effects -- the so-called disparate impact -- of societal discrimination on protected
groups, whether or not specific discriminatory intent on the part of defendants can be isolated; and (3) it seeks
to integrate institutions by race, ethnicity, disabled condition, and sex. [7]
Affirmative
action connotes remedial consideration of race, ethnicity, disability, gender,
or sexual orientation as a factor, among others, in decision-making about
outreach, jobs, government contracting, K-12 student assignment, university
admission, voting rights, housing, and the exercise of presidential clemency.
The goal of this process is to redress the disadvantage under which members of
disparately-impacted groups are said to labor. The relative weight accorded to
race, national origin/ethnicity, gender, sexual orientation or disability
varies from program to program. Thus,
affirmative action remedies range from disseminating job information to
preferential employment and admissions practices, classroom integration, the
creation of majority-minority legislative districts, set-asides for minority
and women-owned businesses, and
court-ordered employment quotas in egregious discrimination cases.
As
noted, disparate-impact theory is central to affirmative action. That theory assumes the existence of unlawful
discrimination in cases of protected-group over or underrepresentation. Such an
assumption would make sense to Barack Obama where African Americans are
concerned. In his remarks on the killing of Trayvon Martin, the President noted
the continued, pervasive and systemic racism in America:[8]
There are very few African American men in
this country who haven't had the experience of being followed when they were
shopping in a department store. That includes me. There are very
few African American men who haven't had the experience of walking across the
street and hearing the locks click on the doors of cars. That happens to
me -- at least before I was a senator. There are very few African Americans
who haven't had the experience of getting on an elevator and a woman clutching
her purse nervously and holding her breath until she had a chance to get off.
That happens often. …
The African American community is also
knowledgeable that there is a history of racial disparities in the application
of our criminal laws -- everything from the death penalty to enforcement of our
drug laws. …
Now, this isn't to say that the African
American community is naïve about the fact that African American young men are
disproportionately involved in the criminal justice system; that they’re
disproportionately both victims and perpetrators of violence. It’s not to
make excuses for that fact -- although black folks do interpret the reasons for
that in a historical context. They understand that some of the violence
that takes place in poor black neighborhoods around the country is born out of
a very violent past in this country, and that the poverty and dysfunction that
we see in those communities can be traced to a very difficult history. …
And let me just leave you with a final
thought that, as difficult and challenging as this whole episode has been for a
lot of people, I don’t want us to lose sight that things are getting
better. Each successive generation seems to be making progress in
changing attitudes when it comes to race. It doesn’t mean we’re in a
post-racial society. It doesn’t mean that racism is eliminated. But
when I talk to Malia and Sasha, and I listen to their friends and I see them
interact, they’re better than we are -- they’re better than we were -- on these
issues. And that’s true in every community that I’ve visited all across
the country.
Affirmative action has been
“rebadged.” The need for “diversity” in
school, government agencies, and workplace populations--and the asserted
difference in ideas and practices various groups bring-- has become a dominant
rationale used to support the race/ethnic/sex/disability-conscious remedies
typical of traditional affirmative action’s effort to reduce systemic disparate
impacts affecting protected groups. While analytically distinct, diversity
theory urges and seeks the same remedial outcomes as affirmative action’s
disparate-impact theory.
The
diversity mantra is neither discussed nor evaluated by Ackerman. Nor is the
extension of affirmative action to females, Hispanics, Asian-Americans, and
Native-Americans. According to the closest student of this extension,[9] much of it was the result
of administrators taking for granted
that the extension was appropriate. How this taking for granted position
squares with Ackerman’s claim[10] that the bureaucratic
advocacy of disparate-impact theory was marked by “expertise,” and
“administrative constitutionalism” is yet to be determined. Knowledge about
these extensions could baffle and disturb “We the people.” For example, during
the Obama Administration –between FY 2009 and FY2012—federal contract spending
for certified small disadvantaged enterprises contractual services totaled some
$133 billion or about 8% of total expenditures for federal procurement of goods
and services for those years.[11] The 8% exceeds the 5% goal
assigned by statute for all federal agencies.
Federal procurement expenditures for certified, small disadvantaged
business enterprises (DBEs) represent a significant national affirmative-action
effort to assist minority and female-owned business through a variety of
preferential treatments such as limiting bidding to DBEs; requiring prime
contractors to establish goals for the use of DBEs; government loans and
training.[12]
There are some thirty-five thousand of these DBEs[13] recognized by the federal
government. States and localities have created many others, but there is no
accurate count of their numbers.[14] Currently, businesses
owned and operated by U.S. citizens whose net worth is no greater than $750,00[15] (not counting the value
of one’s home) can be certified DBEs (for federal and state/local programs) if
the owner/operator is a female or is a member of one of the following
presumptively[16]
(by federal DBA law) disadvantaged/discriminated groups:[17]
Black Americans; Hispanic Americans; Native Americans
(Alaska Natives, Native Hawaiians, or enrolled members of a Federally or State
recognized Indian Tribe); Asian Pacific Americans (persons with origins from
Burma, Thailand, Malaysia, Indonesia, Singapore, Brunei, Japan, China
(including Hong Kong), Taiwan, Laos, Cambodia (Kampuchea), Vietnam, Korea, The
Philippines, U.S. Trust Territory of the Pacific Islands (Republic of Palau),
Republic of the Marshall Islands, Federated States of Micronesia, the
Commonwealth of the Northern Mariana Islands, Guam, Samoa, Macao, Fiji, Tonga,
Kiribati, Tuvalu, or Nauru); Subcontinent Asian Americans (persons with origins
from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives Islands or
Nepal).
As cited above, President Obama
expressed well aspects of humiliation experienced by African Americans, and one
must wonder about the extent to which the other affirmative-action eligible
groups are subject to the humiliation Blacks are. In Ackerman’s view, a basic
social thrust provoking the public accommodations, employment, and voting civil
rights measures of recent vintage was the desire to mitigate Black humiliation.[18] He argues that the
antihumiliation theme should dominate judicial civil-rights doctrine and
methodology as it did in Brown v. The
Board (1954), [19] the school racial
segregation opinion. Thereafter, in large measure, the Supreme Court reverted, in
its 14th Amendment equal-protection opinions, to the strict
scrutiny, mid-tier scrutiny, and mere rationality methodologies which Ackerman
finds deficiently legalistic, but fails to explain the nature of these
methodologies and why they are wanting.
To Ackerman, a major failure--betrayal he calls it[20]-- of the Supreme Court to
adhere to the civil rights anti-humiliation ethos was its determination in Shelby v. Holder (2013)[21] to gut the preclearance
requirement of the Voting Rights Act (VRA) of 1965[22] as reaffirmed by Congress
in 2006. That affirmative-action statute and its continuances did indeed
represent “government by numbers”[23] (as well as
disparate-impact theory) in that they abolished literacy tests in states and
counties where fewer than 50% of the voting-age population voted for president
in various years. In consequence, Black voting catapulted dramatically in the
targeted “Old South.” Additionally, the VRA required states and counties in the
Old South to preclear any voting mechanism changes by getting federal
permission to do so. In ending the preclearance requirement, the Shelby v. Holder Court determined that
America had changed at least in terms of perpetrating the humiliation of
preventing Blacks from voting, and that in the targeted VRA 1965 areas, Black
capacity to vote approximated that of Whites.[24] Where then was the betrayal? Has not America ended this
form of humiliation, particularly in an America where by VRA amendment there
are currently no literacy tests at all? Ackerman does not answer these
questions, nor does he delineate the dimensions of the Voting Rights Act. [ The Voting Rights is discussed further in the post on Shelby v. Holder which follows immediately after the endnotes of this Ackerman post.]
Copyright © 2014
by William Leiter with all rights Reserved
[1] Bruce Ackerman, We
the People: 3: The Civil Rights Revolution (The Belknap Press of the
Harvard University Press, 2014), 47.
[2] Id at 314.
[3] Id at 11, 61, 72, 81, 158, 224-225.
[4] Id at 174, 182.
[5] John D. Skrentny, The
Ironies of Affirmative Action: Politics, Culture, and Justice in America (University of Chicago Press, 1996), 2-3; Tali
Mendelberg, The Race Card: Campaign
Strategy, Implicit Messages and the Norm of Equality (Princeton University
Press, 2001), ch 1.; Thomas J. Sugrue, Not
Even Past: Barack Obama and the Burden of Race (Princeton University Press,
2010), 112-113; John D. Skrentny, After
Civil Rights: Racial Realism in the New American Workplace (Princeton
University Press, 2014), 268.
[6] Some 174 federal affirmative-action statutes and
administrative rules are delineated in federal law books alone as of September,
2004. See Charles V. Dale & Cassandra Foley, Survey of Federal Laws and Regulations Mandating Affirmative Action
Goals, Set-asides or Other Preferences Based on Race, Gender, or Ethnicity (September
7, 2004). See: http://digital.library.unt.edu/ark:/67531/metacrs7387/m1/1/high_res_d/RL32565_2004Sep07.pdf
Also see Congressional Research Service, The Library of Congress, American Law
Division, Compilation and Overview of
Federal Laws and Regulations Establishing Affirmative Action Goals or Other
Preferences Based on Race, Gender, or Ethnicity: A Report to Senator Robert Dole at 5-32 (February 17, 1995).
[7] Here, "discrimination" means invidious
(i.e., unfair or unjust) treatment of people. "Societal (systemic,
disparate-impact) discrimination" means societally-rooted invidious
treatment of people on account of group membership or affiliation.
"Protected group" means the racial and ethnic (national
origin/ancestral) groups, sexuality groups, and disabled people covered by
anti-discrimination laws and regulations. "Minorities" are the racial
and ethnic groups so covered. "Affirmative action" means the general
policy for treating societal discrimination. There are many specific policies
for implementing this general policy.
[8] U.S. Whitehouse Website, Remarks of the President on Trayvon Martin, July 19, 2013. http://www.whitehouse.gov/the-press-office/2013/07/19/remarks-president-trayvon-martin
[9] John D. Skrentny, The
Minority Rights Revolution (The Belknap Press of Harvard University Press,
2002), 5, 18, 86-87, 90, 94, 100.
[10] Ackerman, We the People 3 (cited in note 1), 174,
182.
[11] U.S., General Services Administration, Small Business Goaling Report,
FY2009-FY2012. Accessible at https://www.fpds.gov/fpdsng_cms/index.php/en/reports/63-small-business-goaling-report.html
[12] U.S. Civil Rights Commission, Federal Procurement After Adarand, September, 2005, 138-152.
Accessible at http://www.usccr.gov/pubs/080505_fedprocadarand.pdf
[13] George R. La Noue,
Defining Social And Economic Disadvantage: Are Government Preferential Business
Certification Programs Narrowly Tailored? 12 U Maryland L J of Race, Religion, Gender,
and Class, 274, 277-278 (Fall, 2012).
[14] Id.
[15] For continued certification. La Noue, 12 U Maryland LJ of Race, Religion
and Gender at 295 (cited in note 13). Initial certification permits a net worth
of less than $250,000. U.S. Congressional Research Service, The 8(a) Program. … October 12, 2012,
Summary. Accessible at http://digital.library.unt.edu/ark:/67531/metadc227649/m1/1/high_res_d/R40744_2012Oct12.pdf
Women-owned DBEs need no such economic “disadvantage” if their businesses are
substantially underutilized in the marketplace. U.S. Congressional Research
Service, Small Business Set Aside
Programs….June 15, 2012, 10. See http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/R41945_06152012.pdf
[16] The law permits the rebutting of presumptive
disadvantaged status, but this involves written complaints and hearings and is
seldom accomplished. For example, no challenges were made to DBE certification
at the Small Business Administration and the Department of Transportation
between 2003 and 2011. La Noue, 12 U Maryland LJ of Race, Religion, and Gender
at 299 (cited in note 13).
[17] List quoted from La Noue, 12 U Maryland J of Race, Religion,
Gender, and Class at 282 (cited in note 13). Bolding added.
[18] 128-129.
[19] 347 U.S. 483.
[20] Ackerman, We
the People 3, ch., 14 (cited in note 1).
[21] Slip Opinion, No. 12-96, June 25, 2013. Available at http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf
[22] Codified as amended at 42 USC § 1973 et
seq.
[23] Ackerman, We
the People 3, 155 (cited in note 1).
[24] Slip Opinion, No. 12-96, June 25, 2013. Majority
opinion at 3-5, 13-15, 24. Available at http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf
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