Public Opinion and the Demise of Affirmative Action

• Publication year: 2010

Public Opinion and the Demise of Affirmative Action

Stephen A. Plass

Introduction

It has become increasingly difficult to generalize about blacks as a racially oppressed group in America. This is not due to the fact that discrimination has ceased, or because the barriers to success have been removed, or because substantial equality has been achieved.[1] Arguments that blacks are disadvantaged now compete with positive media images reflecting black success as both fact and fiction. For example, Colin Powell's appointment as Secretary of State and Condoleezza Rice's appointment as National Security Advisor by President George W. Bush are prominent indications that blacks have made it.[2] The Monica Lewinsky scandal depicted to the nation Vernon Jordan's prominence as a lawyer and his closeness with President Clinton. Furthermore, the decisions of Presidents George W. Bush and Bill Clinton to fill many cabinet posts with blacks reflect success stories at the highest levels.[3] On a wider scale, the presence and activities of black professionals who number in the millions and spend several hundred million dollars each year at hotels and on conventions further portray black success.[4]

Black presence in business and social settings and media images suggest that America is a place of racial cooperation where bigotry is an aberration. Such portrayal of our nation's racial condition is a successful commercial formula that seemingly meets the needs of both black and white audiences.[5] On the side of fiction, television shows now routinely depict blacks as, among other things, surgeons, lawyers, and police chiefs.[6] One blockbuster movie cast a black male in the role of saving the universe,[7] and in another film, a black female firmly implements White House policy.[8]

Conspicuous consumption by blacks helps reinforce perceptions that American society has removed most barriers to equal opportunity and achievement.[9] Significant and repetitive positive images of blacks tend to undermine a general contention that to be black is to be disadvantaged.[10] Major movies have suggested that blacks share power with whites at all levels.[11] Mainstream movies regularly depict the still-taboo subject of interracial romance, thereby suggesting general recognition of black equality.[12]

Although no one can generally demonstrate that it is better to be black,[13] encountering black success as fact or fiction has served to magnify the plight of less privileged whites. Not that long ago, black disadvantage was ubiquitous. Today, however, subtle and sometimes complex racial practices accommodate avoidance of the more general realities of black existence.[14] For example, governments built highways over and around black communities and thereby allowed commuters to bypass the depressing realities of poor black neighborhoods.[15]

In addition to discriminatory highway planning, housing segregation remains a national problem partly facilitated by private groups and the federal government. Although many factors contribute to white flight from the inner cities to the suburbs or other isolating enclaves, negative perceptions about blacks remain an integral part of the whites' decision to segregate.[16] Federal highway and home ownership policies, along with zoning and development practices of state and local governments, augment the problem of isolating racial minorities.[17] Despite the realities of racial division, whites have changed their perception of black existence. Most Americans, confronted by personal obligations and stresses, are inclined to rely on personal experiences and anecdotal data.[18] Individualist pursuit of a better quality of life forces greater reliance on racially stereotyped socialization and media snippets.

Changing perceptions about black achievement and white vulnerability have helped change the conversation and attitude about racial issues. This changing perception, in its more strident forms, has changed both the debate and direction of affirmative action.[19] The way in which marginal black achievement has been linked to white disadvantage is equally damaging to the survival of affirmative action.[20] This linkage between white disadvantage and black success has garnered a strong following. The idea that black success is achieved on the backs of whites has prompted the necessary popular outcry to vote certain affirmative action programs out of existence.[21] It has also resulted in President Clinton modifying his position of strong support for schemes that benefit minorities.[22] White vulnerability tied to affirmative action also has captured the attention of legislators seeking to end any scheme that provides assistance on the basis of race.[23] Furthermore, the Supreme Court has determined that affirmative action programs now cast blacks in the role of discriminator rather than victim.[24]

Skewed perceptions about the black condition and a quiet avoidance of racial realities now dominate discussions about race. It is common to hear that discrimination is not a norm but an aberration, and that white disadvantage mirrors that of blacks. Part I of this article evaluates the link between increasingly widespread images of black success and declining realities of whiteness as privilege[25] and its impact on the future of affirmative action. Part II shows that tying white disadvantage to black opportunity and achievement is not new and has always been strong currency in Supreme Court civil rights jurisprudence. Part II also shows that, while available scholarship has focused on the interpretive aspects of the Court's affirmative action jurisprudence, it has paid little or no attention to the role of public perception in redirecting the Court's attention to the concerns of whites. Part III of this article argues that public mood and opinion are more powerful than the constitutional and statutory provisions implicated in the affirmative action debate because public opinion is a key force driving the interpretation given to those provisions. Part IV evaluates the effect of public opposition to racial competition and the theory of colorblindness on affirmative action programs in the areas of education, voting, and employment. This article contends that we must recognize racial discrimination and continue to work at eradicating such practices. Identifying how discrimination against blacks continues will serve as a counterweight to perceptions of black advantage and will minimize the public outcry against affirmative action.

I. Background

Scholars have theorized that the Court's civil rights jurisprudence is majoritarian[26] or political,[27] among other things. Although these critical assessments have merit, they do not fully evaluate the reasons for the Court's majoritarian or political tendencies. This article suggests that the Court has always assumed responsibility for the plight of proletarian or working class whites.[28] Unfortunately, arguments that portray blacks as an obstacle to white opportunity and achievement have continuously blinded the Court. Restrictive civil rights decisions reflect attempts to adjust the balance of power in favor of opportunities for working class whites. Moreover, the Supreme Court now openly views less-privileged whites as the victims of affirmative action programs.[29]

The notion that affirmative action harms whites provides significant justification for applying strict scrutiny requirements to programs that benefit minorities. Under this analysis, if such programs exclude whites, they are presumptively illegitimate.[30] However, eliminating such programs would mean that efforts to remedy the harm of slavery and its legacy have officially come to an end. It would also confirm the public sentiment and the Court's perception that, in large measure, equal opportunity exists for all races, and that discriminatory acts are exceptional events. By rejecting minority-friendly schemes as unconstitutional, the Court promotes the belief that civil rights laws have removed discrimination as a barrier to equal opportunity.

If our existing civil rights laws truly removed the barriers to equal opportunity, scaling back affirmative action may not stir much controversy. However, available data shows that legal declarations of civil rights have not reduced America's race-consciousness or race-specific behavior. Civil rights laws have not torn down these barriers to equal opportunity, and color-blind schemes have promoted more racial division than racial solidarity.[31]

Alternative preferential schemes grounded in economic disadvantage are not specifically designed to address racism and minority underachievement tied to it. Although white privilege has declined since the days of slavery and Jim Crow, partly due to affirmative action's creation of opportunities for blacks, this process should not be viewed as a regressive trend.

Civil rights advocates must persuade the Court that these developments are desirable in a progressive democracy. To sustain remedial efforts labeled as affirmative action, they must convince the Court that the greatest barrier to equality is racism, not affirmative action. They must also convince the Court that, despite appearances, black success is not that far-reaching, and whites have not paid a heavy price for the real gains blacks have made. It seems possible to persuade the Court if popular attitudes shift.

II. Majoritarianism and White Privilege

Legal scholarship routinely characterizes Supreme Court civil rights decisionmaking as majoritarian.[32] This characterization has merit, but is not always adequate. Beginning with the Court's most notorious civil rights decision, the Dred Scott case,[33] the Court acceded to a strong national desire to protect the interests of slaveowners.[34] At the same time, the Court rejected as unconstitutional an arguably majoritarian enactment that prohibited slavery in the Louisiana Territory.[35] The Court's subsequent...