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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.
Copyright © 2012. All rights reserved.
[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.
