Affirmative Action's Unlikely Allies





10-8-12

Matthew Johnson is James Farmer Postdoctoral Fellow in Civil Rights and Social Justice at University of Mary Washington.


Lee Bollinger, former president of the University of Michigan and current president of Columbia University, talks with Admiral Mike Mullen in 2010. Credit: DoD/Mass Communication Specialist Chad J. McNeeley.

On October 10, the Supreme Court will hear Fisher v. University of Texas, the fifth affirmative action admissions case to reach the Court in forty years. One way to view this case is to place it in the long history of resistance to affirmative action in the United States. But a look at the amicus curiae (friends of the court) briefs reveals a parallel story about affirmative action that we don’t often discuss. Supporting the University of Texas and its use of race in admissions decisions is a group of unlikely bedfellows: university presidents, corporate executives, and military officials. As much as we like to tell the story of affirmative action through the lens of backlash, the emergence of this coalition helps explain why race-conscious admissions practices -- albeit in limited forms -- have survived the legal onslaught.

We first saw these interests come together in 2003, when the Supreme Court heard cases about race-conscious admissions at the University of Michigan’s College of Literature, Science, and the Arts (Gratz v. Bollinger) and Law School (Grutter v. Bollinger). In those cases, more than twenty Fortune 500 corporations, eighty-five post-secondary institutions, and thirteen high-ranking military and civilian national security officials submitted amicus briefs to support the university.

This would have been inconceivable forty years ago. In DeFunis v. Odegaard (1972), the first affirmative action case to reach the Supreme Court, no such coalition existed. Indeed, Marco DeFunis, the white student who sued the University of Washington’s Law School, could count on the support of the National Association of Manufacturers. In its amicus brief, NAM argued that the “Constitution requires neutrality as to race regardless of good faith intent.” The organization added that affirmative action might actually reduce opportunities for minority employees and “interject divisive consequences in the employment area.”

The Supreme Court eventually ruled that the case was moot because DeFunis was about to graduate (a state trial court had already ordered the law school to admit him), which set the stage for the famous Regents of the University of California v. Bakke (1978) decision. But in the six short years between DeFunis and Bakke something changed. Allan Bakke, the white plaintiff, could not count on the same support of business interests. The National Association of Manufacturers did not submit an amicus brief; nor did any corporation. Few people at the time drew any significance from this silence, but Ronald Reagan soon found out what it meant.

When Reagan took office and tried to eliminate government agencies that enforced equal opportunity, modify government affirmative action policies, and challenge legal precedents that supported race-conscious policies in court, he assumed that corporate executives would be among his most vocal supporters. He was wrong. Reagan didn’t realize that corporations had slowly changed the way they viewed race-conscious hiring and promotion practices over the course of the 1970s. A 1978 Wall Street Journal survey captured this shift, finding that almost two-thirds of corporate executives supported government affirmative action programs.

In the 1980s, corporate executives and business organizations mobilized to contest Reagan’s anti-affirmative action initiatives. David Kearns, Xerox’s chief executive, called Reagan’s affirmative action position “dead wrong.” John Akers, chief executive at IBM, sent a telegram to Reagan’s chief of staff, explaining that race-conscious hiring and promotion practices had “served us well” and the company would continue those practices no matter what policy decisions Reagan made. Other corporate executives testified before Congress in support of affirmative action. Moreover, the National Association of Manufacturers change course, writing its first amicus brief in support of affirmative action in Sheet Metal Workers v. EEOC (1986). Fourteen years after NAM argued in its DeFunis brief that the Constitution was colorblind and affirmative action would “interject divisive consequences,” the organization wrote that racially-attentive practices have “allowed industry to benefit from new ideas, opinions, and perspective by greater workforce diversity.”

The way NAM emphasized the positive effects of workforce diversity reveals how corporations connected race-conscious hiring and promotion practices to the primary goals of business. Corporations no longer described equal opportunity policies in terms of compliance or remedial means to address the legacy of racism. According to human resource managers, a diverse workforce made companies more competitive in global markets, offered more creative approaches to problem solving, and reduced racial tension. In other words, affirmative action made good business sense.

The military, the other unlikely bedfellow in this coalition, went through a similar transformation in the 1970s and 1980s. By the end of the Vietnam War, military officials were concerned about racial tension within the armed forces. One lieutenant general later admitted that racial tension had “reached a point where there was an inability to fight.” One of the problems officials identified as a contributing factor was the small number of African-American officers. As a result, the Department of Defense, military academies, and ROTC implemented affirmative action policies to raise African Americans’ representation in the officer ranks. In turning to affirmative action to improve the military’s ability to fight, high ranking military officials, like business executives, were connecting race-conscious practices with institutional effectiveness.

The fact that corporations and the military changed their opinions of affirmative action (and relied on universities to train minority candidates) didn’t necessarily mean that corporate executives and military officials would support affirmative action admissions against legal attack. On the contrary, this coalition was secured through hard groundwork done a decade ago by University of Michigan administrators. When the university found itself on the wrong side of an affirmative action lawsuit, President Lee Bollinger persuaded Harry Pearce, Vice Chair of General Motors, to submit an amicus brief on behalf of GM. Soon thereafter, Bollinger won the support of Jim Hackett, CEO of Steelcase, who personally courted other business leaders to support the University of Michigan. Gaining support from military officials proved more difficult. Bollinger failed to court Secretary of State General Colin Powell, but he eventually convinced a group of former high-ranking military officers and civilian national security officials to join in a brief that linked national security to the diversity in the military’s officer corps.

This coalition has made it easier for lawyers to show why affirmative action admissions is a compelling state interest, an argument that is essential for passing constitutional muster. Just as important, the support of corporations and the military has made it more difficult to frame the debate over affirmative action as race-conscious liberalism versus color-blind conservatism.

Most legal experts agree that the Supreme Court will rule narrowly in Fisher, potentially placing further limits on how universities can use race as a factor in admissions decisions; however, the Court will not strike down affirmative action. The fact that race-conscious admissions practices will likely continue to survive in the face of yet another legal challenge speaks to the strength of this powerful coalition of universities, businesses, and the military.


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