The Pursuit of Fairness: A History of Affirmative Action.

Vol. 15 No.1 (January 2005), pp.49-54

THE PURSUIT OF FAIRNESS: A HISTORY OF AFFIRMATIVE ACTION, by Terry H. Anderson. Oxford and New York: Oxford University Press, 2004. 336pp. Cloth. $35.00 / £21.50. ISBN: 0-19-515764-8.

Reviewed by Timothy J. O’Neill, Department of Political Science, Southwestern University. Email: oneillt@southwestern.edu.

Terry Anderson, Professor of History at Texas A&M, has written a perplexing book. Few books match the breadth of his story of affirmative action in the United States. Few offer so engaging a narrative voice or are capable of making a familiar story read as if it were fresh and new. And yet, while wanting to recommend it, I am uncertain to whom I should recommend it. Perhaps my problem is that I am using a Political Science prism to evaluate an historian’s work.

THE PURSUIT OF FAIRNESS has a straightforward central theme. “Ultimately, affirmative action concerns fairness: What is fair in America?” (p.xi). Anderson demonstrates that “what is fair” is open to debate, fairness being a product of time, tradition, and human experience. His history is the history of an idea that becomes an ideal and eventually becomes a social norm.

Anderson begins his narrative in the pre-history of affirmative action—the “Jim Crow” society of the South in the late 1800s; Wilson’s segregation of the federal bureaucracy; the 1930s New Deal legislation writing non-discrimination requirements into public works and relief programs; Roosevelt’s executive order mandating desegregation of the war industry; Truman’s efforts to integrate the “Jim Crow” army and the federal bureaucracy. The common threads in this story are the efforts of people such as A. Philip Randolph, FDR’s Interior Secretary Harold L. Ickes, industrialist Henry Ford, and New York Senator Robert Wagner to end discrimination in hiring practices and wages for African Americans, and later for women, “Jews, Catholics, Seventh-Day Adventists, Jehovah’s Witnesses, and . . . Mexican and Native Americans” (p.25). Also common is these efforts’ failure to overcome governmental and private resistance to equal opportunity. There were a few mild successes such as African Americans benefiting from the Civilian Conservation Corps, farm subsidies and loans, and minimum wage and social security protections in federal programs. The failures were more frequent and more tragic. No federal contact was ever canceled during World War II because of an employer’s racially discriminatory hiring or employment practice. While service in the military during World War II favorably affected white service personnel’s opinions about blacks, racial riots and black outrage escalated when African American soldiers returned to a segregated America. Even President Truman’s status as commander-in-chief did not end segregation in the military, with the U.S. Army not fully integrated until 1954. For most white Americans, “fairness,” during this period, was what personal and institutional prejudice affirmed. [*50]

Anderson next turns to John Kennedy’s and Lyndon Johnson’s push for racial equality. This is the most familiar story in the book. Kennedy’s 1961 executive order is the first use of affirmative action with regard to race, earlier usages focusing on the rights of workers. LBJ strong armed Congress to win passage of the 1964 Civil Rights Act. These revolutionary laws promised an end to discrimination. Both the language and the legislative history of the Civil Rights Act commanded non-discrimination, a color and gender-blind solution to the problem of racism, sexism, and religious discrimination. But, Anderson points out, the colorblind ideal foundered on two practical problems. How do you define discrimination? How do you measure compliance with nondiscrimination laws (p.94)? The answers forced government to look for color and gender in order to create a color and gender-blind society out of a discriminatory one.

The 1960s also saw the emergence of empowerment movements for women, gays, and the disabled. Anderson demonstrates that despite the apparent colorblind command of Title VII of the Civil Rights Act, both presidential administrations and courts shifted their focus from the search for intent to the actual effect or results. “Fairness,” by the end of LBJ’s administration, was “political equality and equal opportunities” for all, although popular understandings saw it as directed to the poor, not solely or especially to racial or ethnic minorities (p.107).

It is in this section that my Political Science sensibilities came into play. Anderson has a tin ear to the delightful interplay of political, personal ambitions, and vendettas that underscored and drove congressional and presidential actions during the 1960s. He does recognize how JFK, like FDR, was hobbled in his quest for civil rights by his need for Southern congressional support for other items on his domestic agenda. But Kennedy’s support for civil rights was as much pragmatic and strategic as was Richard Nixon’s in the next decade. Nor is the reader reminded of how LBJ was able to corral key votes in the House and Senate, although Anderson grants Johnson his due as one of the principal and necessary movers. This is a tale that deserves recounting, especially in a book that seeks to educate a popular audience.

On the other hand, Anderson emphasizes the centrality of the “fairness to taxpayers” in these opening chapters. Since at least the late 1800s, both the federal and state governments were happy to gather taxes from African American and other excluded groups but not to extend to them equal access to jobs, benefits and political power (p.3). This modern “taxation without representation” argument appears both in the claims of private figures and in the justifications of public officials for overcoming barriers to equal opportunity. I confess that I had never noticed the centrality and power of this argument. It is a refreshing twist and addition to the “human rights” justification often enlisted in the campaign for equal rights.

The next chapter examines the Nixon, Ford, and Carter administrations. Nixon’s efforts on affirmative action were as complex as his character and beliefs. He initially adopted LBJ’s program of timetables and preferences. [*51] Anderson is right to attribute this at least in part to Nixon’s pragmatic accommodation with a Democratic Congress. But in fairness to Nixon, he had been a long supporter of civil rights as a member of the U.S. Senate, and there is some anecdotal information suggesting that he, as did Eisenhower, supported racial integration as commanded by Brown v. Board of Education. A former assistant attorney general in the Eisenhower administration once said in a conference at the Kennedy Library that some of the language in the administration’s amicus brief in the Brown case came from Eisenhower. Indeed, some of that language ended up, without attribution, in Chief Justice Warren’s decision. Nixon, like Eisenhower, had come to terms with the New Deal and the welfare state. They were not the firebrand supporters of efforts to reduce or eliminate government regulation that Ronald Reagan would be. Nonetheless, Nixon did turn his back on the more aggressive, results-oriented affirmative action as he made common cause with union workers who feared hiring quotas and also shared a disdain for the anti-war demonstrations rocking college campuses and public streets. Ironically, the Watergate scandal and its distractions gave cover to the Equal Employment Opportunity Commission to adopt the most aggressive enforcement policy in its history (p.140).

The story here is really less about Nixon than it was about the courts and private companies. The Supreme Court’s adoption of the “disparate impact” test in Griggs (1971) confirmed the shift to a results-orientation in civil rights litigation. Bakke (1978) confirmed the constitutionality of preferences, although the Court differed over quotas. Fullilove (1980) and Weber (1979) seem to confirm judicial support for the use of racial and other considerations to root out and eliminate prejudices. Diversity preferences became institutionalized in private business culture. Companies such as AT&T began to extend employment protections to gays. By the end of Nixon’s administration, either through public or private action, equal opportunity protections had been extended to a majority of Americans, based on race, ethnicity, disabilities, age, gender, and sometimes sexual orientation (p.141).

The Nixon and Carter years represent the zenith, both politically and socially, of affirmative action. “Fairness” demanded more than good intentions or open recruitment. It sometimes required preferences and deadlines. During the Reagan era discussion shifted to different definitions of fairness that had been muted in the previous decades. But affirmative action was not an issue high on the Reagan agenda. His administration’s attacks on affirmation action were more like skirmishes. Most large American businesses supported affirmative action not only for its public relations value but also because it contributed to good business. Even the Reagan Cabinet and the Republican Party in Congress split over affirmative action. It was not until the George H.W. Bush and Clinton administrations that affirmative action was seriously challenged.

The Bush/Clinton era saw retrenchment and reaction against affirmative action. crosson (1989) moved the courts’ focus from results back to intent. [*52] Anderson might have mentioned that part of this pattern also emerges in First Amendment religious freedom cases, as Justice Scalia led a Supreme Court majority to impose the burden on challengers to demonstrate a hostile intent by the government. These were also the years in which policy makers were moved to correct perceived abuses of affirmative action programs. Anderson, while sympathetic to the need for preferences, offers an evenhanded account of those abuses, especially in federal and state construction contracts.

Anderson’s grasp of the political dynamics seems least solid in these sections. For example, most of his sources are secondary, largely from popular media. Perhaps this is why he recycles popular misconceptions, some serious and others minor, such as the “gridlock” government of the Reagan era (cf., Mayhew 1991), the recycling of the factually misleading “Willie Horton” campaign ad myth in 1988 (Lee Atwater’s ad had only whites in the revolving door visual attacking Dukakis and his prison furlough program; it was an independent group’s ad that pictured Willie Horton), and even the discredited “white angry male” explanation for the 1994 congressional election outcome (Anderson ignores the anti-incumbent wave that first rose in the 1992 election and peaked in 1994 and the mobilization of white evangelical voters, a group who was then more accepting of affirmative action than were white Catholics and mainline Protestants). A popular history still needs to be accurate history, one relying on the best evidence, not that which can be scissored from weekly news or business magazines.

Anderson does show that the status of affirmative action timetables and preferences was in peril during the Clinton and George W. Bush administrations. Clinton’s “mend it, don’t end it” was a slogan parading as a policy. California’s Proposition 209, Washington State’s Initiative 200, and other direct democracy efforts banned preferences from programs of some states. Hopwood v. Texas (1998) threatened to end thirty years of affirmative action in colleges and universities. There were some small victories for equal opportunity advocates, however. Clinton’s 1998 executive order banning discrimination based on sexual orientation in federal employment practices brought the federal government into accord with what was increasingly the prevailing rule in private business and educational institutions. Finally, Gratz (2003) and Grutter (2003) seemed to affirm the central holding of Bakke that race could be used as one of many competing considerations in college admissions. But these cases also reaffirmed the demand that such programs pass muster under the “strict scrutiny” test. Whether such decisions remain relevant to changing demographics is open to question. Anderson effectively summarizes the “transracial America” argument that racial and ethnic lines are beginning to be so blurred that affirmative action for such groups may become moot as such identities become less clear. Nonetheless, Anderson concludes that fairness, at the beginning of the twenty-first century, is more a matter of giving a “plus” to victims of past and continuing unjust discrimination than it is the more demanding formula of preferences and timetables. [*53]

The final chapter grapples with the hard question of whether affirmative action “works.”

Anderson briefly presents the arguments and evidence offered by Loury, Sowell and others that “preferential hiring played only a minor role in blacks marching into the economic mainstream” (p.282). But he fails to offer his own assessment of the merits of these and other relevant critiques. Indeed, to the consternation of my old college composition instructor, Anderson ends his book with a paragraph of questions rather than offering the well supported and well considered evaluation by someone who has spent years studying and then writing 282 pages recounting the trials, tribulations, and triumphs of America’s pursuit of fairness through affirmative action.

PURSUIT OF FAIRNESS has its virtues. It is a well-written account of a complex and often puzzling social policy. Anderson skillfully weaves the story of how racism, sexism, and paternalism for the disabled come out of the common cloth of American prejudices. His story lacks the theoretical insights of other affirmative action treatments such as Peter H. Schuck’s DIVERSITY IN AMERICA. But Anderson compensates for this by telling a quick and readable story to a popular audience who often knows little about the history of equal rights, the women’s movement, the Great Society, let alone the history of affirmative action.

The book has its vices as well. It favors popular media explanations too much while avoiding some of the best social science explanations, especially on the events and movements of the 1980s and 1990s. It sees the relevance of other forms of discrimination to racial and ethnic discrimination, but apart from a few brief comments, Anderson ignores religious discrimination, the missing part of the puzzle of intolerance in a freedom loving America. I would assign the first half of the book to an undergraduate class, but I would hesitate to ask them to rely on the last half.

REFERENCES:

Mayhew, David R. 1991. DIVIDED WE GOVERN. New Haven: Yale University Press.

Schuck, Peter H. 2003. DIVERSITY IN AMERICA. Cambridge: Harvard University Press.

CASE REFERENCES:

Brown v. Board of Education, 349 U.S. 294 (1954).

Fullilove v. Klutznick, 448 U.S. 448 (1980).

GRAZ v. Bollinger, 123 S.Ct. 2411 (2003).

Griggs v. Duke Power, 401 U.S. 424 (1971).

Grutter v. Bollinger, 123 S.Ct. 2325 (2003).

Hopwood v. Texas, 999 F. Supp. 872 (1998).

REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265 (1978).

richmond v. j. a. crosson co., 488 U.S. 469 (1989). [*54]

United Steelworkers v. Weber, 443 U.S. 193 (1979).

************************************************************