Remedying Racism: The Supreme Court and Affirmative Action

Coming in June 2009 is a Supreme Court decision that is likely to rule, once again, against affirmative action. The case involves white firefighters in New Haven, Connecticut. The city had a conventional (the NY Times says, poorly contstructed) promotion exam on which in 2003 white test takers did better than black or Latino test takers. The city invalidated test results as discriminatory against candidates of color. White firefighters sued, arguing they were discriminated against. The issue of “reverse discrimination” and “reverse racism,” clever white reframing terms, was again raised, with these oxymoronic phrases being widely circulated.

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Creative Commons License photo credit: Tim Pearce, Los Gatos

In an April 21, 2009 editorial the New York Times called on the Supreme Court to follow the decision of the Second Circuit appeals court in its decision that the city did not discriminate. As the Times noted,

The United States Court of Appeals for the Second Circuit in New York, and the trial court before it, ruled that the city had acted properly. Title VII of the Civil Rights Act of 1964 requires employers to ensure that employment practices are not racially discriminatory. Because New Haven had a reasonable belief that the test discriminated against minority applicants, it had a legitimate basis for discarding the results.

The Times asks why New Haven did not have a better constructed test, and also notes that

If the Fire Department had promoted based on the test, two Hispanics and no blacks would have been eligible for the seven open captain positions. No Hispanics or blacks would have been eligible for the eight lieutenant positions. Faced with a test that had such a strong adverse impact on minority applicants, New Haven decided to throw out the results and leave the supervisory positions open. In their lawsuit, the white firefighters insist that there was nothing wrong with the exam.

The savvy columnist and scholar Earl Ofari Hutchinson has a good article at New America Media on the likely decision against affirmative action:

It’s hardly the first time the Supreme Court has ruled on race related employment and education cases. In each instance the rulings have done much to fuel the notion that a majority of Americans oppose affirmative action.

He also makes clear data that counter a common white myth and show that few whites ever get seriously hurt even by aggressive affirmative action plans:

The other pillar of the Supreme Court’s anti-affirmative argument – and it cropped up again in the New Haven case – is that qualified white males are getting kicked to the curb and are losing ground to unqualified blacks, minorities and women. . . . According to census figures, if every unemployed black worker in the country were to displace a white worker, only a tiny fraction of whites would be affected. Furthermore, affirmative action pertains only to job-qualified applicants, so the actual percentage of affected whites would be minuscule. In New Haven, the number of firefighters allegedly affected was 20. The main sources of job loss among white workers have to do with factory relocations and labor contracting outside the United States, computerization and automation, and corporate downsizing.

I have mulled over these thorny issues in several places before, and let me summarize some general thoughts about racial discrimination and its affirmative action remedies.

First we need to consider where most racial discrimination has occurred in this society. Discrimination, as conceptualized by most scholars of racial-ethnic relations, emphasizes the dominant group–subordinate group context. Racial discrimination usually refers to actions of members of dominant groups—for example, white Americans—taken to harm members of subordinate groups, such as black, Latino, Asian, or Native Americans. Historically and today, systemic white discrimination is not just a matter of occasional white bigotry but involves the dominant white group’s power to enforce its racist prejudices and framing in discriminatory practices across many institutions. On occasion, individual members of subordinated racial groups can be motivated by their prejudices to take action to harm those in the dominant white group. Yet, with modest exceptions, members of racially subordinate groups usually do not have the power or institutional position to express their stereotypes and prejudices they hold about whites in the form of continuing and thus substantial everyday discrimination.

Think about the historical and contemporary US patterns of racial discrimination directed by large numbers of whites against just one major group, black Americans. That mistreatment has meant, and still means, widespread blatant and subtle discrimination by whites against blacks in most organizations in all major institutions in U.S. society—in housing, employment, business, education, health services, and the legal system. Over four centuries, many millions of whites have participated directly in discrimination against many millions of African Americans. Judging from opinion polls and research studies, a majority of whites currently still hold numerous negative stereotypes of African Americans and millions of these will discriminate under some circumstances. And most whites observe anti-black discrimination around them without actively working to stop it. This widespread and systemic discrimination has brought extraordinarily heavy social and economic losses (the latter estimated to be trillions of dollars over nearly 400 years) for African Americans in many institutional sectors of society.

What would the reverse of this centuries-old anti-black discrimination and other oppression look like? The reverse of the institutionalized discrimination by whites against blacks would mean reversing the power and resource inequalities for several hundred years. In the past and today, most organizations in major institutional areas such as housing, education, and employment would be run at the top and middle-levels by a disproportionate number of powerful black managers and officials. These powerful black officials would have aimed much racial discrimination at whites, including many years of slavery and legal segregation. Millions of whites would have suffered—and still suffer—trillions in economic losses such as lower wages, as well as high rates of unemployment and political disenfranchisement, widespread housing segregation, inferior school facilities, and violent lynchings. That societal condition would be something one could reasonably call a condition that significantly “reversed the discrimination” against African Americans.

What is usually termed reverse discrimination is something much different from this fictional anti-white scenario. The usual reference is to affirmative action programs that, for a limited time or in certain places, have used racial screening criteria to overcome a small part of past and present discrimination that targets racially oppressed people. Whatever modest costs a few years of affirmative action have meant for whites (usually white men, for white women have been major beneficiaries of affirmative action), those costs do not add up to anything close to the total cost that inverting the historical and contemporary patterns of discrimination against people of color would involve. Affirmative action plans, as currently set up—and there are now far fewer effective plans than most critics suggest—do not make concrete and devastating a widespread anti-white prejudice or framing on the part of people of color. As implemented, affirmative action plans have mostly involved modest remedial efforts (typically designed by white men!) to bring token-to-modest numbers of people of color and white women into certain areas of our economic, social, and political institutions where they have historically been excluded.

If remedies for racial oppression, such as serious affirmative action, are real and successful, they will of course mean some costs to be paid by those who have benefited most from centuries of racial and gender discrimination. Yet, today, a white man who suffers as an individual from remedial programs such as usually modest affirmative action in employment or education suffers in but one area of life (and often only once) and because he is an exception to his privileged racial group. A person of color who suffers from racial discrimination usually suffers in all areas of her or his life and primarily because the whole group has been and still is subordinated, not because he or she is an exception.

In spite of continuing high levels of discrimination targeting Americans of color, over recent decades, most remedy programs have been weakened or phased out as a more conservative white perspective has regained full control in most major public and private institutions. Today, this retrenchment from racial desegregation of U.S. society is quite substantial, and it resembles the white reactionary backtracking in the 19th century that took place after the Reconstruction era. After Reconstruction the white elite replaced slavery with the near-slavery of legal segregation, much to the longterm detriment of the entire society. Are we in a new post-Reconstruction period, in spite of a electing a black president?


  1. siss

    Joe, I’m really glad you brought this up. I would be very interested to see the make up of this exam. I had read somewhere that is was comprised of 60% questions, 40% interview (not sure if that is correct).

  2. I would be interested in the make up of the exam, too. It should’ve been about firefighting.

    Unless, of course, minority test-takers were affected by . . . I can’t think of the exact term, but minorities often score lower on tests when they think the tests will have some impact on racial perception. In this case, I think they were right.

    Another thing I can’t quite wrap my head around is how the Supreme Court, or rather just conservatives, can see racism when it has a supposed negative affect on white Americans but can’t find it when it happens to black Americans.

  3. Joe Author

    good points. I have not seen the exam. The term is “stereotype threat,” and Claude Steele came up with the concept in research on both black and female test takers. It impairs test taking to call it to their attention, which settings like these do. In addition, the tests and settings are created by whites, with lots of implicit biases…

  4. I know Joe. But do you think they do it on purpose, I mean, do you think they actually make sure their decisions maintain the white racist frame? And if so, shouldn’t that be something that comes up in confirmation? And if the SC justices are bent, where are we to do?

  5. siss

    Joe, I’m not sure if I agree with your theory of impairing test-taking ability. I know test anxiety can factor into performance on an exam (I have a bad case of it!) however, the more prepared one is, the less anxious one will (should) feel. If in fact in the interview portion (if there was one, im not sure) scores were lower for the minority test takers, there is reason for suspicion. However if it was just straight multiple choice, t/f, fill in the blank type assessments, there was probably nothing wrong with the exam. Hopefully during the hearings we can find out more information about the structure of the exam.

  6. joe Author

    siss, those are important issues. Take a look at the research of Claude Steele at Stanford U. His research will illustrate how the stereotype threat plays into test scores. It is important for the test makers and test takes to come from the same cultural/subcultural worlds if the test has any chance of being fair, both in its actual questions and in how it is framed and administered.

  7. siss

    He has a huge body of work, do have any specific recommendations? Also, are we sure that this test was written in a singular “cultural” world. It appears to be that way (hence throwing out the test), but do we know anything about the writers of the exam?

  8. murph

    I’m white. Not racist by any means. I cannot understand how a minority feels when they are being discriminated against and would never say I did. It sucks, I’m sure. I’m all for equality, but there is nothing equal about affirmative action quotas. I can understand why they were necessary in the past but…really?? Our president is black and he’s awesome. Is it really needed anymore? I recently did not get a job (promotion) because we were not up on our affirmative action quota. I was way more qualified for the job and they actually told me this (affirmative action) is the reason I did not get the job. How is that fair?

  9. adia

    Hi Murph: If you look at the sociological research on middle class, professional black employees, most of it suggests that even with stellar educational credentials, strong work histories, all the things that should make them competitive with their white counterparts, black professionals frequently still encounter much occupational discrimination that inhibits their upward mobility. (See Feagin and Sikes 1996 for one of the classic studies of this, if you’re interested. There’s also Ellis Cose’s “Rage of a Privileged Class,” and Bell and Nkomo’s “Our Separate Ways,” and numerous others.) So it’s not that people of color no longer experience racial discrimination, nor is it that “unqualified” people of color are generally “taking jobs” from more qualified whites. What the research demonstrates is that often highly qualified, talented minorities, particularly blacks and Latino/as, are tainted by employers’ racial stereotypes and immediately viewed as less skilled, regardless of their actual capabilities. Ideally, this is what affirmative action is supposed to address. Unfortunately, in its present form it has served to benefit white women more than any other group (see Domhoff and Zweigenhaft 2008), which is not inherently a problem, but this does not serve to remedy ongoing racial inequality. Finally, very recent research (see current issue of American Sociological Review) documents that diversity actually helps benefit corporations in the short and long term. I’m sure it sucks to lose out on a promotion and I hope I don’t appear insensitive to that. However, since research suggests that diversity actually benefits companies, affirmative action to create a multiracial employee base might be better for the company in the long term. Seems to me that what’s unfair is not the policy in and of itself, but that despite the fact that there are qualified, talented professionals of color in every field, your company has been so flagrantly lax on creating a diverse workforce at the upper levels.

  10. Nquest

    “in its present form it has served to benefit white women more than any other group”
    So, Murph, why exactly have your racialized affirmative action?
    Re: The job scenario you talked about, why is your angst with affirmative action as opposed to the employer who was obviously in the wrong… and that includes telling you it was because of affirmative action. Exactly how that happens, nobody knows but people sure like to tell these stories… as if employers make it a habit to tell people they haven’t hired why.
    Must be on some other planet.
    First of all, no employer is obligated to do it and when they do, in cases like this — which, again, are out of the ordinary (when an employer doesn’t like a “more qualified” person’s apparent snotty attitude, I doubt they tell that person “this is the reason you didn’t get the job”) — I’d have to question their motive if not your relationship/connections.
    My first question is: how are you privy to information that almost all un-hired applicants are not?

  11. Murphy, first off, there are no hiring “quotas.” And I agree with Nquest, if you’re telling the truth about what happened to you, you should really question why they told you affirmative action was the cause.
    And also, maybe affirmative action was the cause. That doesn’t mean you were more qualified, not to hurt your feelings. Like adia pointed out, part of the problem that aff.act. is to address is minorities being passed over because they’re immediately viewed as less qualified than they actually are. Maybe your boss had that view of whomever got the promotion and the person is actually perfect for the job. Again, not to hurt your feelings, I’m just saying. Plus, it just occurred to me, so don’t put too much into it.
    Plus, as the saying goes, when one door closes, another door opens. So chin up.
    But, it is odd, Nquest, how often I have to read comments like murphy’s despite the actual numbers. Tell you the truth, I think most of the folks spreading stories like these are just lying to make a point. Cause for every white guy “unfairly” passed over, there has to be 100 black folks or more with the same story.

  12. jwbe

    >I was way more qualified for the job
    I find statements like this odd. Almost everytime when the topic is Affirmative Action somebody white comes up with a story like this. An allegedly better qualified white doesn’t get the job. How do you know that you were better qualified?
    At least were I work qualification is not just about knowledge or education, but many other things more. Therefore somebody with perhaps better education/school doesn’t get a job or promotion because of lacking other important skills.

  13. murph

    Well.. I guess they could just be feeding me this to have an excuse of why I didn’t get the job. And I’m not “lying” to make a point.

    My place of employment is a government agency in which very few people have any experience in this field. I would not have needed much training at all to jump into the position. And trust me I have put my time in! I know the person that did get the job had no experience, I do not know what kind of education the person has. Truthfully I hope everything works out and she’s great. I don’t know if I mentioned, but the sales director wanted me for the job, but the director of administration said no, we need a person of color. My boss heard those words come out of his mouth and told me….so whatever…oh well.

    I guess I’m not too upset about the situation, because it made me realize I need to move on. I hope you are right Kstate about another door opening, and soon! hah

    I agree the employer should not have told me about the affirmative action, but they were taking 5 months to fill the position that they basically told me was mine. So of course I had questions. They did not handle this situation correctly. There is an affirmative action state government committee that keeps close watch on everyones employees. And I know we have a document that shows how many of what color people we have working and what we “should” have. I don’t know what kind of consequences agencies face if they don’t meet their quotas but we do not need to bring any unwanted press/attention to our agency.

    Like I said before, I don’t know the problems minorities face. And I guess I’m an optimist/naive about racism. I am ready to live in a world where it doesn’t matter. But situations like mine do exist and white guys, like me, don’t just make them up. Anyway thanks for the perspective it is interesting to me to hear what is going on on the other side of the issue. It’s unfortunate that affirmative action is even needed.

  14. Nquest

    I know the person that did get the job had no experience, I do not know what kind of education the person has.
    Hmm… Before you said “I was way more qualified for the job…” Exactly how you knew that without knowing the person’s educational background is one amazing feat. Then when you add the fact that “very few people have any experience in this field” the whole thing becomes more and more amazing…
    situations like mine do exist and white guys, like me, don’t just make them up
    I’m sure they do when you have irresponsible employers/supervisors like the ones you describe.

  15. adia

    Murph–you said in your earlier post (#15) that “[you]don’t know the problems minorities face.” Are you interested in finding out? If so, there’s an abundance of literature on this very topic. Why not do some reading for yourself? It won’t teach you what these experiences feel like firsthand, but you can get some information that would make you more knowledgeable in this area. I’d suggest the book I mentioned earlier, “Living with Racism” by Joe Feagin & Melvin Sikes. It’s user-friendly, suitable for non-academics, and very eye-opening about the problems experienced by middle class black Americans (those who many think have “made it” and should have no cause for complaint). I also recommend Thomas Shapiro’s “The Hidden Cost of Being African American,” which is an exceptionally well-written, award-winning book about residential segregation and the often unwitting processes that reproduce it. Also very user-friendly and accessible. Finally, you might consider “Shifting,” by Jones and Shorter-Gooden, which examines the challenges race and gender pose for black women. Since you’re on this site, I’m assuming you have some interest in these topics anyway. I really hope you’ll check out at least one of them and possibly come back and tell us what you think. (And I’m happy to make more recommendations, if you’re interested! :))

  16. Matthew

    This comment is for adia:

    I’d like to point out that the segregation is not happening anywhere in the United States anymore. Segregation requires a couple of things. First, it requires that a conscious policy be made to completely separate people based on race. Lack of diversity in housing and schools is not segregation. It simply means the racial balance in those places does not mirror the demographic reality in the general population. Second, segregation means that no blacks can live with whites. If there are pockets of blacks living with whites (or latinos with whites), then that means segregation does not exist there. Segregation requires that races remain completely separated. I have trouble with the use of ‘segregation’ in these discussions because it’s not at all a proper definition. The use of that word adds an inflammatory element to the discussion and distorts it before the discussion has begun. Also, the use of that word is insulting to older black men and women who actually did go through segregation. What they went through does not even compare with the situation at hand.

  17. Joe Author

    Matthew, racial segregation takes two forms, de jure (by law) and de facto (by discriminatory custom). So long as a great many white landlords, homeowners, real estate agents, and mortgage bankers TODAY still practice blatant, covert and subtle racial discrimination against darker-skinned Americans–and large amounts of research prove they do–then the result is racial segregation in the sense of involuntary separation of racial groups. This is of course not too surprising in a country where almost all the top real estate positions, and other major corporate and top legal positions, are held by whites.

  18. Nquest

    Matthew: “I have trouble with the use of ’segregation’ in these discussions”
    “Residential segregation”, which is what Adia referred to, is commonly used terminology to describe housing patterns [commonly used in critical race and sociological discourse, that is]; hence, the “residential” adjective used to specify what type of segregation is being referred to.
    When you invoke older Black men and women who lived during/through Segregation (the period in American history), you are not just talking about whether or not the races were completely separated and I doubt you can prove that the kind of 100% separation you’re using as the “proper definition” of segregation actually existed. And I’m sure there are older Black women and men who use the term “residential segregation” themselves which makes your inflammatory use of their good name and bad experiences all the more insulting.
    Matter of fact, Derrick Bell is one of those older Black men and he used the term “residential segregation” in his book Silent Covenants which is his more than just a hint that the term “residential segregation” is nothing more than the continued analysis of the kind of discriminatory housing practices that occurred during and immediately after the Segregation period which includes such things as “restrictive covenants”, red lining, etc. All issues that older Black men and women have raised in the past and continue to raise to this day no matter what form the racism (in intent or impact) takes.
    So your beef with Adia’s use of the term “RESIDENTIAL segregation” is more about your lack of knowledge and/or some inane pet peeve of yours than it is a substantive objection.

  19. Michael Parker

    America has ALWAYS been about affirmative action. The thing is that for most of its history, America has supported affirmative action for whites. Historically, who has been given preferential treatment in home ownership, schools, jobs, voting? Guess what, it has been all of those unqualified whites who happened to have the right skin color.

    Current legislation for affirmative action isn’t giving minorities preferential treatment as much as it is doing away with white preferential treatment. But don’t listen to me, check out this amazing clip of a white man speaking in support of affirmative action:


  1. Where Affirmative Action Stands Today : Asian-Nation : Asian American News, Issues, & Current Events Blog

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