Reflections on Affirmative Action: Halcyon Winds and Minefields

David Hall, Dean,^(*)
Northeastern University School of Law

Recently, there has been so much said and written about affirmative action⁽¹⁾ that one has to wonder whether there is a need to add anymore rhetoric to this heated debate.⁽²⁾ The metaphor of "halcyon winds and minefields,"⁽³⁾ poetically captures the perspective that I would like to bring to this discussion.

There are certainly some strange winds blowing across this country. For example, major shifts in the political and judicial landscape over the last decade have brought the concept of affirmative action to the forefront of America's consciousness.⁽⁴⁾ These winds are certainly not calm. These turbulent and strong winds have created much of the confusion that makes American society ripe for social explosions. These explosions will occur as we step on the numerous and widespread minefields that were planted by our historic and contemporary corruption of the principle of equality. There are minefields all over. If we are not careful about how we step into the future, we may not only blow the concept of affirmative action out of the ground, but we may also destroy the possibility of ever having a society that is united and equal.⁽⁵⁾

Recent trends in the interpretation and application of affirmative action reveal that there are more minefields than there are soothing, halcyon winds.⁽⁶⁾ Yet peace, though rare, is always more virtuous, mightier, and longer-lasting than war.⁽⁷⁾ Ultimately, if we are thoughtful, reflective, and committed to creating a better society than the one that presently exists, then the calm winds of progress and saneness will rid the landscape of the minefields of confusion, fear, and political manipulation. I hope this short essay captures this possibility.

The minefields associated with affirmative action are not new. They have existed since the concept of affirmative action was invoked and implemented. The real explosive danger, which is associated with the most recent debate, is that affirmative action has come to symbolize all that is evil and all that is good with regard to race and gender in America. A more reflective perspective, however, would reveal that affirmative action is neither inherently good, nor inherently evil. It is a mechanism that has been fashioned and implemented to address an unfortunate and devastating aspect of American life and history.⁽⁸⁾

Some who attack affirmative action argue that only total color-blindness will eliminate racism in society.⁽⁹⁾ Opponents assert that affirmative action causes animosity and division in the workplace;⁽¹⁰⁾ creates a new racism in society, called reverse discrimination;⁽¹¹⁾ and stigmatizes women and people of color.⁽¹²⁾ Some critics even argue that affirmative action has hampered efforts to eradicate racism from society at large⁽¹³⁾ and has served as a roadblock to black progress.⁽¹⁴⁾ These critics argue that black people's fixation with this concept keeps society from concentrating on the real evils of moral decay in black communities.⁽¹⁵⁾ Some defenders of affirmative action have embraced it as a 20th century savior that has been the most successful weapon against discrimination.⁽¹⁶⁾ Advocates contend that without affirmative action American society would return to the days of Jim Crow segregation.⁽¹⁷⁾ Advocates maintain that, although affirmative action has resulted in positive changes, society is not ready to dispense with it.⁽¹⁸⁾

Although the affirmative action arguments may be valid, both sides of the debate are creating new social minefields by transforming affirmative action into a religious tenet that one must either willingly and blindly embrace or adamantly and forcefully reject. In the debate, critics and advocates often lose sight of the broader problem and its ultimate goal.⁽¹⁹⁾ It is clear that this country must look past the affirmative action debate to address and solve the deeper causes, as well as consequences, of poverty and discrimination based on race and gender.

Society creates social minefields when it expects a public policy to accomplish more than it was ever intended to, and perhaps more than it ever could. Affirmative action was never intended to cure racism, sexism, or other forms of discrimination in American society. However, whether one agrees with affirmative action or not, it is one of many tools that society must employ to rid itself of discrimination and oppression.⁽²⁰⁾

Our fixation on affirmative action as the sole remedy obscures our ability to find complete answers.⁽²¹⁾ The more society relies on a single tool to undo centuries of discrimination and oppression, the greater the danger becomes that affirmative action will actually hinder society's progress toward equality. To uproot the evils of racism and sexism that are so imbedded in American society requires a revolution of the hearts, souls and minds of all of us.⁽²²⁾ Mean spiritedness and disregard for others prevents society from being able to calmly and dispassionately evaluate affirmative action.⁽²³⁾ There are spiritual, emotional and moral questions that transcend race or gender, but we pretend that it is our racial or gender differences that preclude us from addressing these underlying moral issues. If individuals continue to see themselves as isolated entities with little obligation to the collective human condition, then neither affirmative action nor any other policy or program will usher in a better society.⁽²⁴⁾

The effects of affirmative action certainly blow in different directions. On one hand, the workplace has changed significantly over the past thirty years. According to a 1995 Daily Labor Report, approximately "[five] million people of color and [six] million women are in higher occupational [classifications] today than they would be if we still distributed people through the labor force the way we did in the sixties."⁽²⁵⁾ On the other, however, America still has major problems regarding workplace opportunities. A study released by the United States Department of Labor's Bureau of Labor Statistics (BLS) in the summer of 1994 reveals that Blacks and Hispanics continue to fall behind Whites in almost every measure of success in the job market.⁽²⁶⁾ Not only is the unemployment rate higher for persons of color,⁽²⁷⁾ but they spend more time looking for work.⁽²⁸⁾ The median weekly salary for whites is $478; while for Blacks, it is $370; for Hispanics it is $335.⁽²⁹⁾ Thus, despite gains in education and test scores,⁽³⁰⁾ there is still a wide gap in wages and employment rates between blacks and whites.

Affirmative action data reports are very susceptible to manipulation by those who have other objectives in mind. Does this data mean that affirmative action has partially worked and, therefore, continues to be needed? Maybe. But the data could also indicate that affirmative action has not worked because the problem is much deeper than the affirmative action remedy and unrelated to America's laws and public policy.⁽³¹⁾ Interpretation of this data is controlled, not only by the data itself, but by an understanding of the history of racism and sexism in this society.

Because the affirmative action debate has become so polarized, ambitious politicians have learned how to manipulate the debate in favor of their own political success.⁽³²⁾ By tapping into the fear and insecurity that exists on both sides of the affirmative action debate, the public's strong emotions and reactions are exploited to swing votes. Right-wing politicians imply that white men are losing their positions and promotions to people of color and women.⁽³³⁾ However, despite the fact that only thirty-three percent of the population are white men, they constitute eighty-five percent of the tenured professors, eighty-five percent of the partners in major law firms, ninety percent of the United States Senate, ninety-seven percent of school superintendents, and ninety-five percent of Fortune 500 Chief Executive Officers.⁽³⁴⁾ Although public soundbites may lead us to believe that people of color and women are replacing white men in the workplace by large numbers, the data indicates differently.

There is also the minefield of affirmative action abuse and misuse. Even the most ardent advocates of affirmative action would have to admit that the policy has not always been used in the way it was intended. There are horror stories of black and women entrepreneurs fronting for white contractors and investors. Certainly some managers, in their enthusiasm to change the status quo, have hired persons who were not in fact qualified, even though affirmative action, by its nature, requires that individuals be qualified for the job or position.⁽³⁵⁾ This practice, however, ultimately hurts the applicant, the institution and the policy. Misapplication of affirmative action to change the make up of a workforce without ensuring sufficient qualifications creates a minefield when undertaken as a general rule, rather than an exception.

If we eliminated every governmental policy or program that was abused or manipulated, then we would have to dispose of government altogether, including Congress, which often abuses the privileges with which it is entrusted.⁽³⁶⁾ Yet abuses related to affirmative action are evaluated using a different standard from other governmental abuses. This happens, not because of the concept, but because race and gender have always been viewed through a different lens in this society. If we can tolerate abuses in government in general, but not in affirmative action, then a deeper problem is revealed: our inability and unwillingness, as society members, to see the world through the eyes of those who are different from ourselves.⁽³⁷⁾

Then there is the minefield of a pervasive lack of leadership. What is missing most in the public debate about gender and race is enlightened and committed leadership. Although President Clinton and Massachusetts Governor William Weld⁽³⁸⁾ have articulated eloquent defenses of affirmative action, they were just that: defenses. Although statements from our political leaders in support of affirmative action are valuable, I am concerned that they generally have been born out of crisis, not out of a need to enlighten and lead society. Society must demand that those who occupy positions of power and influence create a tenor that inspires constructive and enlightened discussion about critical and difficult issues such as affirmative action. Without leadership, we will continue to step on each other's emotions, fall into social minefields, and cover-up unpleasant, yet important, parts of our history.

The Supreme Court has also planted minefields by deciding cases such as Adarand Constructors, Inc. v. Pena⁽³⁹⁾ that the Supreme Court made future implementation and defense of affirmative action policies much more difficult. The Adarand decision, in particular, creates a tremendous roadblock for the future use of affirmative action. For the first time, a majority of the United States Supreme Court justices held that strict scrutiny should be applied to federally mandated affirmative action efforts.⁽⁴⁰⁾ Although Justice O'Connor argued that this standard could be met,⁽⁴¹⁾ there are justices such as Justice Clarence Thomas, who feel that affirmative action can never survive strict scrutiny.⁽⁴²⁾ Former Assistant Attorney General for the Civil Rights Division of the United States Department of Justice, Deval Patrick, has predicted that certain existing federal programs will fail the Adarand standard.⁽⁴³⁾

Federal and state legislatures have joined the Supreme Court in creating minefields. Twenty states have introduced bills or resolutions that seek to substantially limit, ban or weaken affirmative action policies.⁽⁴⁴⁾ The California Civil Rights Initiative (CCRI)⁽⁴⁵⁾ exemplifies this type of minefield. Despite mobilization in opposition to the bill,⁽⁴⁶⁾ CCRI was approved by a majority of California voters.⁽⁴⁷⁾ Even on a national level, comprehensive bills have been introduced into the United States Senate and House that would eliminate virtually all preferential programs within the federal government.⁽⁴⁸⁾

Despite the dangers that exist in the current affirmative action climate, there are cool breezes blowing in from different and sometimes surprising directions. The greatest source of halcyon winds come from the companies and institutions that have been enriched by the benefits of affirmative action. Companies across the United States have realized that diversity is good for business.⁽⁴⁹⁾ Many educational institutions also understand that diversity is a key component of excellence.⁽⁵⁰⁾

Some state legislators also recognize the value of affirmative action programs.⁽⁵¹⁾ Bringing people with diverse backgrounds together has destroyed some of the myths of inferiority and, more importantly, has demonstrated that different approaches to problem-solving can bring about better answers and results.⁽⁵²⁾

Sometimes calm winds blow in places where one expects to find minefields. The concept of "reverse discrimination" has always troubled proponents of affirmative action.⁽⁵³⁾ However, lawsuits charging reverse discrimination have been few and their outcomes have been reassuring. Reverse discrimination lawsuits constitute one to three percent of all discrimination actions.⁽⁵⁴⁾ There were twenty-one identified cases concerning individualized charges of reverse discrimination reported from 1990 to 1994.⁽⁵⁵⁾ In seventy-two percent of those, the plaintiffs lost; and in twenty-eight percent, they prevailed.⁽⁵⁶⁾ The facts of some of the losing cases demonstrate that the reverse discrimination defense to affirmative action has been used by some white males to rationalize their own incompetence, fears and disappointments.

For example, a bank manager who was fired because he engaged in unethical lending practices made an unsuccessful claim that he would not have been fired had he been black or female engaging in the same unethical acts.⁽⁵⁷⁾ In another case, a manager of an insurance company, accused by two women of displaying sexually explicit materials in the workplace, was demoted after unsuccessfully claiming that he was being penalized because he was a man.⁽⁵⁸⁾ Finally, in Texas, a bank official, overseeing an operation in which seventy-two percent of the workforce was black, was fired after he made insensitive comments, "including a presumably facetious comment to his supervisory staff that he wanted them to participate in community activities, whether PTA . . . or the KKK."⁽⁵⁹⁾ There was evidence that he ran a sloppy operation, he did not timely file documents, and he did not meet deadlines.⁽⁶⁰⁾ After he was fired and replaced by a black manager, and subsequently a white female manager, the plaintiff claimed that he had been fired due to his race. The court concluded that "[t]his evidence demonstrates nothing more than that [the bank] expected its managers to be racially sensitive--an especially important attribute for a manager whose staff was 72% [persons of color]."⁽⁶¹⁾

Cases like these provide striking evidence that the same argument made about black and women plaintiffs--that they are using discrimination as an excuse for poor performance--applies equally well to white male plaintiffs. These three cases also underscore the myth of the meritocracy.⁽⁶²⁾ White people's incompetence has been tolerated and accepted for centuries in this country.⁽⁶³⁾ If merit has been the dominant norm for the entrance and advancement for white people in this society, then merit produces some very questionable and uneven results.⁽⁶⁴⁾ This contradiction, however, should in no way detract from society's quest for excellence. It should remind us, though, that the road to excellence is generally never straight and it certainly is not all white.

There is a calm wind that seems to blow off this country's shores when we accept the fact that this entire society has benefitted from affirmative action.⁽⁶⁵⁾ Affirmative action has not only helped to ensure that valuable human resources are no longer wasted, but it has also opened up systems in which employers only hired those they knew or with whom felt comfortable.⁽⁶⁶⁾ There are many poor and disadvantaged white people who, with the advent of affirmative action, have found entrance into programs and institutions that were closed to them as well.

There are also halcyon winds emerging from our realization that, if we do not make peace with our past, our present and ourselves, then we will always be a nation at war. Affirmative action will continue to be a part of the American landscape for some time to come, despite present resistance. As long as we avoid the hard questions, such as those involving racial, gender, and economic justice, there will always be a need for affirmative action.⁽⁶⁷⁾ There will also always be people who are committed to making affirmative action successful, just as there will always be those who fight against its existence. While twenty states have introduced bills or resolutions to limit or ban affirmative action, sixteen states have introduced bills to strengthen or expand their affirmative action programs.⁽⁶⁸⁾ The federal government has also expressed its continuing commitment to the principles underlying affirmative action programs.⁽⁶⁹⁾

I would like to end this essay on a personal note. In the midst of debating this issue we tend to focus on global matters and overlook concrete examples. Though I realize the danger of inserting oneself into a public policy debate, the insight gained will hopefully outweigh any damage. I know for sure that I would not be dean of a leading law school in this country if this policy that has been so highly criticized did not exist. I was admitted to law school through the "back door" at the University of Oklahoma Law School because for years they had denied people who looked like me from entering the front door. I was in the inaugural class of students in 1975 who participated in an Admissions by Performance Program that was designed to increase the number of students of color within the law school. My LSAT score was not high enough to get in the university through the normal admissions process, and as one administrator revealed years later, my score was even borderline for admissions into the new program. Not only was I successful in the program, but seventy-five percent of those who entered through the normal processes graduated with a lower grade point average than I did. Yet only three percent of the entire class was admitted through the special program. Later on in my career I was recruited as a law professor at the University of Mississippi because they needed to diversity their faculty, which until that time--1980--had only one black tenure-track faculty member in its history. Even when I applied to be a professor at Northeastern University School of Law, I was initially rejected. Only because of a persistent demand on the part of certain faculty members and students to diversify the faculty, and the presence of a sensitive and creative dean, was I offered a visiting position. I am certain that some people felt they were taking a chance in hiring me and that I did not possess the same qualities as the other faculty members who were hired in the normal process. My success at the school and my ascension to the deanship of this institution says a lot about Northeastern, but it also says a lot about the usefulness and success of this social policy. If I have contributed anything of value to this profession and the institutions that I have been associated with, none of it would have happened if this policy and social commitment was not embraced by various individuals and institutions.

Unlike others, I do not consider myself an "affirmative action baby."⁽⁷⁰⁾ Affirmative action did not give me life, nor was it a substitute for the values of hard work, respect and dedication that my parents and the teachers in those segregated schools⁽⁷¹⁾ I attended instilled within me. This policy, however, helped me knock down barriers that my parents and teachers were not able to overcome. Was I stigmatized because of this policy? Sure. Were there people who knew I was there due to affirmative action efforts? Sure. Was this policy the source and cause of the stigmatization? Certainly not. I am stigmatized because white supremacy is embedded into the fabric and values of this society.

I am stigmatized when I enter into certain stores and they think I am there to steal, despite the fact that I have been successful in academic and professional arenas. The stigma I am referring to includes strangers in an elevator automatically assuming I am a basketball player, despite the fact that I have on my best lawyer uniform. These stereotypes and this stigma did not originate with affirmative action, but they underscore one of the reasons that we, unfortunately, still need this artificial mechanism.

In the area of race and gender politics in this society, there has existed, and still exists, a social policy of amnesia.⁽⁷²⁾ People have a way of forgetting the evils of this society and remembering the good.⁽⁷³⁾ They have a way of embracing the virtues of the founding fathers and overlooking their vices. They even overlook the fact that there were no founding mothers, though women constituted a significant part of the society even then. Politicians remember slavery, but they overlook what has happened for more than one-hundred years after it ended.⁽⁷⁴⁾ Policy analysts record the cost of affirmative action, but they have problems calculating the cost that discrimination has extracted from the collective lives of people of color and women.⁽⁷⁵⁾ They have not found a formula yet that can measure the benefits to whites, and especially white males, that has resulted from this long history of affirmative inclusion,⁽⁷⁶⁾ nor have they calculated the costs to society as a whole from segregated living, educational, and working environments.⁽⁷⁷⁾ They have forgotten that just as individuals forfeit the right to certain valuables because of their behavior, a society may forfeit its right to certain values once it has trampled those values.⁽⁷⁸⁾ How empowering it is to forget what pains us and to remember what makes us feel good. Though that may be a good psychological exercise to bolster self-esteem, it is a very dangerous approach for a society whose citizens still suffer from the consequences of those forgotten evils.⁽⁷⁹⁾ If the presence of affirmative action serves to remind us of those parts of history that many would like to forget, then that alone is one reason why it should continue.

Yet ultimately society must come to grips with problems that are greater than the ones that affirmative action was designed to correct. Society must come to grips with how much we distance ourselves from those who truly are in need; how we fail to understand and accept those who are different from us; how we fail to live up to the very spiritual and moral principles we profess; how we have very little understanding of the simple tenet of "love thy neighbor."⁽⁸⁰⁾ Instead, we are a society of blamers and scapegoats. Until something happens to release us from this pattern, the debate about, and the need for, affirmative action will remain a fundamental part of the American landscape for the eternity of human existence. This is an unfortunate gift to bestow upon our children.

The choice between halcyon winds and minefields is in our hands. Will we, through our attitudes, actions, and policies, create more minefields, or will we be the source of calming winds? Being a halcyon wind does not mean that one must blindly accept every aspect of affirmative action or any other social policy. But it does mean that people must not be so trapped in their own stories that they cannot see the stories of others. It means that all of us must make sacrifices to create the type of society we envision.⁽⁸¹⁾ If we do not make such sacrifices, justice and equality will remain illusive and explosive. I urge us all to be the source of a calm wind, rather than the components of a minefield.⁽⁸²⁾ The danger with planting mines in the field is that we often forget where we placed them; thus, we subsequently become the victims of our own actions. Let it be a halcyon wind that blows this society into the twenty-first century, and let that wind give flight to truth, enlightenment and love,⁽⁸³⁾ because these are the virtues that this society so desperately needs.

* I would like to dedicate this essay to my wife Marilyn Braithwaite-Hall, who has served as an inspiration to me for many years. Despite my administrative responsibilities as dean of Northeastern School of Law, she still encourages me to write and share my ideas. This short essay would probably not exist without her support. I would like to thank my two capable and dedicated research assistants, Chaumtoli Huq and Phyllis Oscar, who did considerable work in researching this area, and giving me valuable feedback.

1. Much of what has been said about affirmative action assumes that everyone has a common understanding of its definition. A general survey of attempts to define affirmative action, however, produces varying definitions. The United States Commission on Civil Rights defined affirmative action as a

contemporary term that encompasses any measure, beyond simple termination of a discriminatory practice, that permits the consideration of race, national origin, sex, or disability, along with other criteria, and which is adopted to provide opportunities to a class of qualified individuals who have either historically or actually been denied those opportunities and/or prevent discrimination from recurring in the future.

U.S. Commission on Civil Rights Briefing Paper on Affirmative Action, June 1984 (on file with the New England Law Review). District and circuit courts vary in their definition of affirmative action. The Fifth Circuit has asserted that "affirmative action programs are by definition purposeful classifications by race." Hopwood v. Texas, 78 F.3d 932, 942 n.22 (5th Cir.) (holding that race may not be used as a factor in law school admissions and therefore, a University of Texas Law School admissions process giving preference to Mexican-American and African-American applicants violated the Equal Protection Clause of the Fourteenth Amendment), cert. denied, 116 S. Ct. 2581 (1996). In contrast, the Ohio Federal District Court defined affirmative action simply as "[a]n act or effort to improve the employment or educational opportunities of members of minority groups." F. Buddie Contracting Co. v. Elyria, 773 F. Supp. 1018, 1020 (N.D. Ohio 1991) (holding in favor of one equal protection clause challenge to Ohio's Minority Business Enterprise program). "[A]ffirmative action . . . , as that term has come to be generally understood . . . [means] preference based on race or gender of one deemed `less qualified' over one deemed `more qualified.'" Taxman v. Board of Educ., 91 F.3d 1527, 1567 (3d Cir. 1996) (Sloviter, C.J., dissenting). In addition, institutions attempting to implement affirmative action programs have provided their own definitions, such as, "[a]ffirmative action is the expression used to describe an employer's good faith efforts to provide all persons with equal access to employment opportunities without regard to race, color, religion, sex, sexual orientation, age, national origin, disability, or veteran status." Northeastern University Affirmative Action Office' Equal Opportunity Policy (on file with the New England Law Review).

2. In order to frame this Article, a quick summary of the current debate surrounding affirmative action is in order. Affirmative action programs specifying race have been justified as:

(1) a corrective for the continuing effects of past discrimination; (2) a prophylactic against future acts of discrimination; and (3) a way to promote diversity, provide role models . . . [and] develop competitive advantages in a demographically changing labor market. . . .

The long-standing arguments against race-based affirmative action are basically these: (1) that it unfairly discriminates against innocent whites because of their race; (2) that it compromises many good meritocratic standards; (3) that it benefits many groups and individuals that are not sufficiently disadvantaged; (4) that it stigmatizes its purported beneficiaries; and (5) that using race to distribute benefits deepens racial divisions and entrenches racial ways of thinking, instead of moving us toward a more colorblind and united society.

CHRISTOPHER EDLEY, JR., NOT ALL BLACK AND WHITE, AFFIRMATIVE ACTION, RACE, AND AMERICAN VALUES 77 (1996) (omissions in original) (quoting a memorandum to President Clinton and others written by Professor Paul Gerwitz of Yale Law School).

3. This theme was taken from a symposium on affirmative action at Boston College in December 1995. Halcyon, a fabled bird, identified with the kingfisher, supposedly had the power to calm the winds and waves during the winter solstice while resting at sea. The concept, therefore, stands for calmness, peace, and tranquillity. See AMERICAN HERITAGE DICTIONARY 814 (3d ed. 1992).

4. See DONALD TOMASKOVIC-DEVEY, GENDER & RACIAL INEQUALITY AT WORK 6-11 (1993). Recent election campaigns have shown that politicians have become adept at using the concept of affirmative action in an attempt to appeal to their constituency and to protect their interests in re-election. See id. at 163. For example:

In the 1990 U.S. Senate race in North Carolina, Senator Jesse Helms, who was running against a black man, Harvey Gantt, ran television ads showing a pair of white hands holding a rejection letter as a voiceover said, "You were qualified, but you didn't get the job because of affirmative action."

Id.

5. This need for care in framing and discussing affirmative action is evident in the numerous ironies that exist in the current affirmative action debates. For example, Critical Race scholar Kimberle Crenshaw argues that adherence to liberal notions of race by the civil rights movement has actually created some of the current theoretical problems of defending affirmative action.

[L]iberal proponents of affirmative action in legal and policy arenas--who had just successfully won the formal adoption of basic anti-discrimination norms--soon found themselves in a completely defensive ideological posture. Affirmative action requires the use of race as a socially significant category of perception and representation, but the deepest elements of mainstream civil rights ideology had come to identify such race-consciousness as racism itself.

KIMBERLE CRENSHAW, CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT xv (Kimberle Crenshaw et al. eds., 1995). 6. "With its June 12 [1995] decision in Adarand Constructors, Inc. v. Pena, the U.S. Supreme Court has laid out tough new ground rules for affirmative action programs and has brought an end to an era of solicitude for preference programs favoring minorities." Affirmative Action After Adarand: A Legal, Regulatory, Legislative Outlook, Daily Lab. Report (BNA) No. 147, at 5-6 [hereinafter DLR No. 147].

7. Civil rights leader Martin Luther King, Jr. was heavily influenced by the nationalist leader and advocate of nonviolence, Mahatma Gandhi. Similarities have been drawn between India's caste system and the United States de jure segregation. The following excerpt from Gandhi's writings seem therefore appropriate in this discussion on affirmative action and the question of the lasting effect of peaceful struggle.

It is no non-violence if we merely love those that love us. It is non-violence only when we love those that hate us. I know how difficult it is to follow this grand law of love. But are not all great and good things difficult to do? Love of the hater is the most difficult of all.

NIRMAL KUMAR BOSE, SELECTIONS FROM GANDHI 17 (1957).

8. See Michael M. Burns, Lessons From the Third World: Spirituality as the Source of Commitment to Affirmative Action, 14 Vt. L. REV. 401, 456, n.112 (1990). It is interesting to note the perceptions of other countries about affirmative action programs in the context of American history. See id. In Seneveratne v. The University Grants Commission, a Sri Lankan Supreme Court Justice upholding educational quotas for certain districts observed that American "[a]ffirmative action programs were devised to ensure true equality, i.e., equality in fact, since it had dawned on right thinking people that mere theoretical equality was inadequate and that it was necessary to give effect not only to the letter of the law but also to its spirit." Id. at 426 n.112.

9. Ward Connerly, an African American regent on the governing board of the University of California who is credited with reviving California's anti-affirmative action ballot initiative, believes that Americans of every race should "melt into the pot" and "be one people" in an America where race is no longer taken into account. Donna St. George, Trial By Fire Awaits Black Regent: UC Panelist May Emerge As Lightning Rod in Affirmative Action Storm, Los Angeles Daily News, Apr. 7, 1996, at N11. In Adarand Constructors, Inc. v. Pena, a recent affirmative action case, Justice Antonin Scalia warned of dire consequences if the law was not made completely colorblind: "To pursue the concept of racial entitlement--even for the most admirable and benign of purposes--is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred." Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2119 (Scalia, concurring in part and concurring in the judgment). There is an increasing amount of literature espousing the necessity for colorblindness in the law and society in general. See, e.g., TERRY EASTLAND, ENDING AFFIRMATIVE ACTION: THE CASE FOR COLORBLIND JUSTICE (1996); THOMAS SOWELL, PREFERENTIAL POLICIES: AN INTERNATIONAL PERSPECTIVE (1990).

10. Some critics of affirmative action believe that it will lead to "the imposition of a hateful balkanization of the job market--a division of spoils, with each distinguishable group raucously demanding its share." BARBARA R. BERGMANN, IN DEFENSE OF AFFIRMATIVE ACTION 18 (1996).

11. Yxta Maya Murray, Merit Teaching, 23 HASTINGS CONST. L.Q. 1073, 1073-74 n.5 (1996). For example, Robert Bork, an unsuccessful candidate for the United States Supreme Court, opined, "`It makes little sense, or justice, to sacrifice a white or a male who did not inflict discrimination to advance the interests of a black or a female who did not suffer discrimination. No old injustice is undone, but a new injustice is inflicted.'" Id. at 1074 n.5 (quoting Robert H. Bork, The Tempting of America 106 (1990)); see also BERGMANN, supra note 10, at 26. ("The sense of grievance about the supposed unfairness of affirmative action is partly based on the belief that it has produced a huge rise in the fortunes of blacks and a huge decline in the fortune of whites."). Supreme Court Justice Antonin Scalia, who opposes affirmative action, refers to white males in one of his opinions as "disfavored" or "nonfavored" groups. See Johnson v. Transportation Agency, 480 U.S. 616, 670, 676 (1987) (Scalia, J., dissenting).

12. See BERGMANN, supra note 10, at 27 (stating that some beneficiaries of affirmative action programs "claim to be stigmatized by the common assumption that they did not make it on their own and, furthermore, could not have"); see also Randall Kennedy, Persuasion and Distrust: A Comment on the Affirmative Action Debate, 99 HARV. L. REV. 1327, 1331 (1986).

It is unrealistic to think . . . that affirmative action causes most white disparagement of the abilities of blacks. Such disparagement, buttressed for decades by the rigid exclusion of blacks from educational and employment opportunities, is precisely what engendered the explosive crisis to which affirmative action is a response.

Id. (footnotes omitted).

13. See KENNEDY, supra note 12, at 1327-29.

The most weighty claim is that preferential treatment exacerbates racial resentments, entrenches racial divisiveness, and thereby undermines the consensus necessary for effective reform. The problem with this view is that intense white resentment has accompanied every effort to undo racial subordination no matter how careful the attempt to anticipate and mollify the reaction.

Id. at 1330 (footnotes omitted).

14. See Adarand, 115 S. Ct. at 2119 (Thomas, J., concurring in part and concurring in the judgment) ("Affirmative action] programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are `entitled' to preferences."); see also SHELBY STEELE, THE CONTENT OF OUR CHARACTER 89-90 (1990) (arguing that affirmative action "teaches no skills, instills no values. It only makes color a passport. . . . [T]he worst aspect of preferences is that they encourage dependency on entitlements, rather than on our own initiative.").

15. See BERGMANN, supra note 10, at 35.

Yet another group of opponents, mostly conservative blacks, present a totally different argument. They claim that affirmative action has not helped blacks at all; on the contrary, it has severely hurt them, as evidenced by the deteriorating condition of black families in the inner city. Affirmative action has injured African Americans by making them believe a falsehood--that they are all victims of white oppression. . . . This argument suggests that blacks encounter no problems in the labor market that could not be overcome by better behavior on their own part.

Id.; see also STEELE, supra note 14, at 170 (claiming that affirmative action has encouraged many African-Americans to adopt an "adversarial, victim-focused identity").

16. See generally Hugh Murray, Turning Back: The Retreat From Racial Justice in American Thought and Policy, J. SOC. HIST. (1996) (book review). One commentator says that, in the genesis of affirmative action, it was thought "race preferences, racial set-asides, and other affirmative action programs, were the only fair method to compensate for the oppression of slavery and segregation of the past and the invisible institutional racism of the present." Okechukwu Oko, Laboring in the Vineyards of Equality: Promoting Diversity in Legal Education Through Affirmative Action, 23 S.U. L. REV. 189, 194 (1996) (footnote omitted). "Without affirmative action, the minority's quest for racial justice will depend on the majority's magnimity, a dependence with proven calamitous consequences. Affirmative action serves as a bridge across the deep gullies created by racism and discrimination." Id. (footnote omitted).

Proponents of affirmative action have hurt their own cause by evading the difficulties posed and costs incurred by the policy they advance. . . . To properly convince the public that these costs are worth shouldering, proponents of affirmative action will have to grapple straightforwardly with them--a process which involves, at the least, conceding their existence.

KENNEDY, supra note 12, at 1327 n.1.

17. See infra note 45 and accompanying text (discussing the argument that has been advanced with particular force in the debate regarding the so-called California Civil Rights Initiative (CCRI), the recent anti-affirmative ballot initiative). "CCRI will worsen the segregation that exists between whites and minorities in public contracting and government jobs, and it will eliminate the option of employers to rectify past patterns of discrimination through affirmative action." Frederick E. Jordan, California Business Council for Equal Opportunity, Anti-Affirmative Action Initiative Would Revive Inequality, S.F. EXAMINER, May 21, 1996, at A14.

18. See Gil Klein, Five Positions Differentiate Clinton, Dole; Perot Attacks President's Character, RICHMOND-TIMES DISPATCH, Nov. 3, 1996, at C4. President Clinton has said that, although he intends to change affirmative action efforts to make them "fairer," affirmative action should not be eliminated altogether because American society still suffers from the legacy of segregation, discrimination, and gender bias. See id. Christopher Edley, Jr., Special Counsel to the President from February to August 1995, who led the White House review of affirmative action, answers the question of when affirmative action will end in the United States by saying, "it should end when the justification for it no longer exists, when America has achieved racial justice in reality. . . . [I]t is no more disingenuous or fantastic to promise that affirmative action is temporary than to promise that racial justice is achievable." Edley, supra note 2, at 278. "Because Americans do not yet face each other on equal terms, we cannot yet abandon affirmative action." Sean Patrick O'Rourke & Ron Manuto, 100 Years of Adjusting to a "Colorblind" Society, Chi. Trib., May 17, 1996, at 27. At a demonstration to urge the Texas Attorney General to appeal the Fifth Circuit's Hopwood decision that the affirmative action program at the University of Texas School of Law is unconstitutional, speakers told demonstrators that affirmative action was still needed at UT and elsewhere because "30 years of those programs had not erased 250 years of segregation and slavery." Jim Phillips, Affirmative Action Ruling Protested; Texas Appeal Uncertain, AUSTIN-AMERICAN STATESMAN, Mar. 26, 1996, at B5.

19. "Only an activist policy--with affirmative action as a prime ingredient--will do that." BERGMANN, supra note 10, at 180. "If we want to continue making things better in this society, we'd better figure out ways to protect and defend affirmative action against the confused, the frightened, the manipulators and, yes, the liars in politics, journalism, education, and wherever else they may be found." Roger Wilkins, Racism Has Its Privileges, THE NATION, Mar. 27, 1995, at 416.

20. See KENNEDY, supra note 12, at 1334. Affirmative action is "but part--indeed a rather small part--of the needed response to the appalling crisis besetting black communities. What is so remarkable--and ominous--about the affirmative action debate is that so modest a reform calls forth such powerful resistance." Id. (footnote omitted).

21. See Burns, supra note 8, at 438-40. The limitations of using affirmative action as a sole remedy have been observed in a more general way by some commentators:

[T]he progressive liberal agenda has not inspired popular passion because it conceives of politics in too narrow a way, as concerned solely with the distributions of government benefits and the protection of individual rights, and thus . . . fails to present a vision . . . of shared purpose and community by connecting them to people's everyday lives and experiences.

Id. at 439-40 (quoting Gary Peller, Tikkun and Progressive Liberalism, Tikkun, July-Aug. 1989, at 77-78).

22. See JOE R. FEAGIN & HERNAN VERA, WHITE RACISM 192-94 (1995).

Critical to solving the problem of the great racial divide in the United States is a new type of human consciousness. This consciousness must involve a new type of white rationality that redefines racial relations as a reciprocal integration of whites with blacks and whites with all other racial and ethnic groups. . . . The new leadership that the nation needs may well have to come from the grassroots rather than the traditional elites. In the past, grassroots movements have achieved not only equal opportunity legislation but also some meaningful transformations in social and political structures. . . . It is time for more antiracist white Americans to join with African Americans in organized protests against the extraordinarily wasteful system of white racism.

Id.

23. See Burns, supra note 8, at 443 ("[T]he individualist worldview is a profoundly conservative doctrine: it inherently stifles change.").

24. See id. at 440 ("Conventional American wisdom embraces individual liberty at the expense of social responsibility, often oblivious to the deep human need for community. . . . Our well-founded commitment to the separation of church and state does not require the elimination of moral values and spiritual wisdom from the American landscape.").

25. DLR No. 147, supra note 6, at 39. These statistics are based upon a 1995 internal report for the Department of Labor conducted by Alfred W. Blumrosen, a law professor at Rutgers University for the department's Office of Federal Contract Compliance Programs. See id.

26. See id. at 38.

27. See id. According to BLS's 1993 data, the unemployment rate was 12.9% for black workers and 10.6% for Hispanics, as compared to 6% for whites. See id.

28. See id. Black workers took an average of 19 weeks to find a job while whites took an average of approximately 18 weeks to find a job. See id.

29. See id.

30. See generally id. at 5-38. According to a report released by the Economic Policy Institute on April 39, 1995, the median education attainment for black males in 1940 was 5.4 years, as compared to 8.7 years for white males. See id. at 38. By 1990, the figures rose to 12.8 for black males and 12.8 for white males. See id.

31. See DINESH D'SOUZA, THE END OF RACISM 268-87 (1995) (arguing "that the American obsession with race is fueled by a civil rights establishment that has a vested interest in perpetuating black dependency. . . . [A]nd that therefore we have no choice but to institutionalize race as the basis for identity and public policy").

32. See generally JOHN DAVID SKRENTNY, THE IRONIES OF AFFIRMATIVE ACTION (1996). The political manipulation of affirmative action to cater to politicians' electoral interests began with the first affirmative action plan. See id. at 178-87. John David Skrentny observed that the first coherent affirmative action plan was President Nixon's plan requiring federal contractors to show that they were hiring blacks. See id. Skrentny argues that this was Nixon's strategy to undercut the strength of the democrats, whom he defeated in the 1968 election by only one percentage point. See id. at 182. Skrentny further argues that affirmative action "placed on the table something to help African Americans at the expense of unions, producing discontent and rivalry in two of the liberal establishment's major supporters." Id. Skrentny concludes that Nixon's strategy worked in 1972 when he was able to gain a large majority of white blue-collar workers, who would later be dubbed as Reagan Democrats. See id. at 218-21. In addition, Skrentny contends that republicans today continue to use affirmative action to stir racial resentment. See id. at 229.

33. See supra note 32 and accompanying text.

34. See Affirmative Action California: Why It Is Still Necessary, (ACLU), Sept. 1995, at 6 (on file with the New England Law Review).

35. See BERGMANN, supra note 10, at 23.

Affirmative action plans cannot be operated properly 100 percent of the time. There are bound to be some misapplications, that is, some appointments of atrociously inappropriate people. But plenty of mistakes are made even in situations where affirmative action programs are not in effect; plenty of white men are hired by mistake. With or without affirmative action, selecting people is not a well-developed science; incompetents do get hired and promoted, and inadequate students do get admitted.

Id.

36. Cf. SUSAN D. CLAYTON & FAYE J. CROSBY, JUSTICE, GENDER, AND AFFIRMATIVE ACTION 3 (1992).

Opposition to affirmative action has been based largely on whether or not it works. Our argument in favor of affirmative action stems from a conceptually prior issue: whether or not it is needed. Other policies and procedures in the United States function at a less than optimal level. Voting, for example, is supposed to be the process through which citizens elect politicians who will represent their point of view, yet voter turnout is dropping, distrust of politicians is increasing. . . . Few would advocate abolishing elections, though, because voting is necessary to our democratic system. We believe that affirmative action is necessary. The question is not whether or not our society should have affirmative action but how to make it work most effectively.

Id.

37. See Deborah L. Rhode, Myths of Meritocracy, 65 FORDHAM L. REV. 585, 585-89 (1996). As one woman lawyer who participated in the Labor Department's Glass Ceilings study noted, "`what's important [in organizations] is comfort, chemistry . . . and collaborations.'" Id. at 589 (quoting Federal Glass Ceiling Commission, GOOD FOR BUSINESS: MAKING FULL USE OF THE NATION'S HUMAN CAPITAL 28 (1995) (alteration in original)). Many white men "`don't like the competition and they don't like the tension' of working with colleagues who are `different.'" Id. (quoting JUDITH LARBER, PARADOXES OF GENDER 237-38 (1994)).

38. See Governor William F. Weld, Commencement Address at Northeastern University (June 17, 1995).

I believe our society today needs to give a little nudge to make sure we're all sitting at the table in 2010, enjoying the fruits of our economic pie. Indeed, I suggest that if all groups are sitting at the table, that will make the pie bigger!

 . . . There's no reason why government shouldn't give this nudge.

The "nudge" I have been talking about goes by the name of "affirmative action."

People say [affirmative action is] not perfect, it can sometimes work unfairness. . . . But the same goes for our tax system. . . . [s]ame goes for democracy. We don't discard those systems when we see an individual application we don't like. Why? Because we understand [that] the systems are there for a necessary purpose. Same goes for affirmative action.

Id.

39. 115 S. Ct. 2097, 2117-18 (1995) (responding to a claim that the federal government's practice of providing incentives to federal contractors who hire minority subcontractors violates the Equal Protection Clause, the Court held that all racial classifications must be reviewed under the strict scrutiny standard).

40. See Adarand, 115 S. Ct. at 2113. Justice O'Connor stated: "[W]e hold that today all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests." Id.

41. See id. at 2117. Justice O'Connor stated that: "We wish to dispel the notion that strict scrutiny is `"`"strict in theory, but fatal in fact."'"'" Id. (quoting Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in the judgment) (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 362 (1978) (Brennan, J., concurring in the judgment in part and dissenting in part) (quoting Gerald Gunther, The Supreme Court 1971 Term--Forward: In Search of a Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972)))).

The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it. . . . When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the "narrow tailoring" test this Court has set out in previous cases.

Id.

42. See id. at 2119 (Thomas J., concurring in part and concurring in the judgment).

I believe that there is a "moral [and] constitutional equivalence" between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.

. . . [U]nder our Constitution, the government may not make distinctions on the basis of race.

Id. (Thomas, J., concurring in part and concurring in the judgment) (alteration in original) (quoting id. at 2120 (Stevens, J., dissenting)).

43. See DLR No. 147, supra note 6, at 2. Before a House Judiciary Committee meeting, Deval Patrick proclaimed "`some programs will have to end and others will have to be reformed' as a result of Adarand." Id. (quoting Deval Patrick, Assistant Attorney General).

44. See id. at 25-30. Following California Governor Pete Wilson's lead, states, including Colorado, Delaware, Florida, Georgia, Illinois, Louisiana, Michigan, Minnesota, Mississippi, Missouri, New York, North Carolina, Oregon, Pennsylvania, South Carolina, Texas, and Washington have passed legislation restricting affirmative action. See id. It is worth noting that some of this legislation are pre-Adarand. See id.

45. See California Civil Rights Initiative, 1996 Cal. Legis. Serv. Prop. 209 (West). The Civil Rights Initiative of California, also known as Proposition 209, was approved by the electors in November 1996 adds an amendment to California's constitution prohibiting all forms of preferential treatment given to individuals in public employment, education, and contracting based on race, gender, ethnicity, or national origin. See Cal. Const. art. I, § 31 (1996). The following are excerpts from the amendment:

(a) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

. . . .

(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.

. . . .

(f) For the purposes of this section, `state' shall include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state.

(g) The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.

Id.

46. See Rinat Fried, Prominent Female Lawyers Band Together Against CCRI, The Recorder, Sept. 30, 1996, at 4. Recognizing that their own careers have benefitted from affirmative action, 30 California women prominent in business and law organized a group called "Women Who Say No to Prop 209." Id. Calling the battle over CCRI, "`the civil rights issue of our generation,'" the group raised more than $10,000 to fight the ballot initiative. Id.

47. See Elections `96 State Propositions, L.A. TIMES, Nov. 7, 1996, at A29 (noting that 54% voted in favor of the initiative and 46% voted against, but "white voters were the only racial or ethnic group supporting 209"); see also Coalition for Economic Equity v. Pete Wilson, 946 F. Supp. 1480, 1520 (N.D. Cal. 1996) (issuing a preliminary injunction). Furthermore, the Clinton Administration announced its intention to join the legal attack on the initiative. See David G. Savage, White House Joins Attack on Prop. 209, L.A. TIMES, Dec. 21, 1996, at A1.

48. See 141 CONG. REC. S10829 (daily ed. July 27, 1995) (statement of Sen. Dole). Former Senate Majority Lead and presidential candidate, Robert Dole proposed a bill to end preferential treatment. The bill is ironically called the Equal Opportunity Act of 1995. See Equal Opportunity Act of 1995, H.R. 2128, 104th Cong. (1995). The bill's stated purpose is to ensure that all Americans are treated equally by the Federal government in Federal employment. See id. Further, this Act endorses those Federal "affirmative action" programs that are designed to recruit broadly and widen the opportunities for competition, without guaranteeing the results of the competition or resorting to preferences on the basis of race, color, national origin, or sex. See id. However, the Act would prohibit those Federal "affirmative action" programs to seek to divide Americans through the use of quotas, set asides, timetables, goals and preference. See id. In support of the bill, Dole said "it is time to stop making government policy by race." Id.; see also Civil Rights Restoration Act of 1997, S. 46, 105th Cong. (1997) (amending the Civil Rights Act of 1964 to make preferential treatment an unlawful employment practice).

49. See DLR No. 147, supra note 6, at 32. Many companies recognize that they benefit in a variety of ways from affirmative action, such as increased productivity, greater diversity of ideas, and improved community relations. See id. For example, Pam Bowman, Manager of Training, Development and Affirmative Action at Honeywell Space Systems Group (Honeywell), a high tech company located in Florida, says that "[s]he has seen affirmative action at Honeywell evolve from a `legally driven' government mandate to a corporate policy that now stresses the value of diversity as a competitive strength." Id. Honeywell's affirmative action strategy also includes a 28-person "Diversity Council" to advise management on ways to increase diversity. See id. at 33.

Another large company, Proctor & Gamble (P&G), has also recognized that its business objective can be best achieved by a highly diverse workforce that reflects its vast customer base. See id. at 33. Stressing that diversity is part of being a "total quality" company, P&G aggressively recruits from women and minority colleges. See id. P&G's Chief Executive Officer and Company Chairman, Edwin L. Artz, said that, "American companies cannot hope to remain competitive in today's global marketplace if they limit the pool from which they find their best talent . . . or if they deny people the tools they need to develop and succeed." Id.

David Barkeley, Vice President for Workforce Diversity at Hughes Electronics, a subsidiary of Hughes Aircraft Co., predicted that the company "will maintain its [affirmative action] policy regardless of whether Republicans in Congress succeed in eliminating or radically altering federal statutes." Id. at 34. Case studies on these three companies reveal that affirmative action works well when workforce diversity is recognized as a competitive strength instead of as an imposition by the government. See id. at 32-34.

50. Most law schools throughout the country still view diversity as a necessary and positive factor in legal education. See Oko, supra note 17, at 199. As early as 1950, the Association of American Law Schools passed a resolution condemning segregation in law schools, and it recently passed a bylaw mandating diversity in legal education: "`A member school shall seek to have a faculty, staff, and a student body which are diverse with respect to race, color, and sex. A member school may pursue additional Affirmative Action objectives.'" Id. (quoting AALS ASSOCIATION HANDBOOK 21 (1990) (on file with the New England Law Review)). The American Bar Association has also shown strong support of diversity in law schools, requiring that, prior to accreditation, law schools must "`demonstrate by concrete action, a commitment to providing full opportunities for the study of law and entry into the profession by qualified members of groups which have been victims of discrimination in various forms.'" Id. (quoting ABA STANDARDS FOR APPROVAL OF LAW SCHOOLS (1979) (on file with the New England Law Review)).

51. See DLR No. 147, supra note 6, at 2. Legislators in approximately 16 states have introduced legislation to strengthen or expand programs that incorporate preferential policies. See id.

52. See BERGMANN, supra note 11, at 10.

Diversity has positive value in many situations, but in some its value is crucial. To give an obvious example, a racially diverse community needs a racially diverse police force if the police are to gain the trust of all parts of the community and if one part of the community is not to feel dominated by the other part.

Id.

53. See Northeastern University Equal Opportunity Policy (on file with the New England Law Review) (defining reverse discrimination as, "a term which describes the actions used by some white and/or male employees [or applicants] to challenge affirmative action programs [claiming that these individuals] become victims of discrimination when minorities or women are hired or promoted in order to correct past discriminatory practices).

54. See DLR No. 147, supra note 6, at 39, 45-50, and accompanying text. Out of 3000 discrimination cases reported, fewer than 100 were for employment discrimination. See id.

55. See id. These cases have been categorized in two groups: (1) the individual white male who alleges that, had he been black or female, he would have obtained employment; and (2) the challenge to the affirmative action which favors minorities over whites. See id. at 39-46.

56. See id. at 48.

57. See Scheier v. Philadelphia Nat'l Bank, 57 Fair Empl. Prac. Cas. (BNA) 1109, 1111 (E.D. Pa. 1991), aff'd, 981 F.2d 1248 (3d Cir. 1992). The court granted summary judgment to the defendant bank holding that Mr. Scheier admitted that he handled the banks funds numerously and repeatedly in a manner that contradicted the established policies of the bank. See id. at 1112. In response to the bank's evidence of the plaintiff's violations of bank policy, the plaintiff simply accused the bank of applying racially discriminatory disciplinary procedures in his case, yet failed to identify a single member of a minority racial group who has been treated more favorably than the defendant. See id. at 1111-12. The plaintiff asserted that the bank showed great concern for preventing discrimination against employees who were women or members of minority racial groups and pointed to sensitivity training classes sponsored by the bank. See id. However, the court did not find that the bank's alleged heightened concern about the problem of discrimination against women and minorities constituted evidence of discrimination against the plaintiff. See id. The court awarded the defendant bank summary judgment because there was no evidence in the record showing sex or racial discrimination against the plaintiff, the defendant bank. See id. at 1112.

58. See Pierce v. Commonwealth Life Ins. Co., 825 F. Supp. 783, 784-85 (E.D. Ky. 1993), aff'd, 40 F.3d 796 (6th Cir. 1994). The trial court granted summary judgment for the defendant on Pierce's Title VII sex discrimination claim holding that the "[p]laintiff . . . failed to present facts from which it might be inferred that any differential treatment afforded him was due to his male gender." Id. at 786. The court rejected plaintiff's contention that the employer insurance employer treated him any differently than others similarly situated, noting that "[u]nlike Ms. Kennedy [a female employee who had circulated jokes and cartoons with a sexual theme but who was not fired], Pierce was a member of management, having authority over several subordinates, and responsibility for maintaining a respectful, respectable, and decorous office." Id. at 787.

59. Switzer v. Texas Commerce Bank, 850 F. Supp. 544, 546 (N.D. Tex.), aff'd, 42 F.3d 642 (5th Cir. 1994).

60. See id.

61. Id. at 549. The court dismissed Switzer's claim holding that Switzer "failed to establish a prima facie case of reverse race discrimination." Id. at 548. The court additionally noted that even if Switzer had established a prima facie case "[t]he summary judgment record is replete with instances of complaints from [the bank's] customers and from other [bank] managers about the performance of Switzer personally as well as [his department]." Id.

62. See RONALD W. EDSFORTH, CLASS CONFLICT AND CULTURAL CONSENSUS 8 (1987). Meritocracy has been defined as a system "`in which individuals rise and fall to their appropriate levels of income and status according to their own abilities.'" Deborah C. Malamud, Class-Based Affirmative Action: Lessons and Caveats, 74 TEX. L. REV. 1847, 1888 n.164 (1996) (quoting RONALD W. EDSFORTH, CLASS CONFLICT AND CULTURAL CONSENSUS 8 (1987)). See Murray, supra note 11, at 1075 (arguing that our current conception of merit "is color-blind and gender-blind, numerical, quantifiable, neutral, and transparently fair--has been formed in exclusion. . . . without reference to the virtues and values of people of color, women, and sexual minorities--typical `Outsiders'").

Merit is defined by white men to reward what white men become. Merit, as we know it, explicitly values particular experiences and abilities--the ones developed by white upper class men--and therefore implicitly devalues others. . . . [M]eritocracy calls those who conform to these standards "equal." Those who are different, it calls "unqualified."

Id. at 1078 n.20 (omission in original) (alteration in original) (quoting Diana M. Poole, On Merit, 1 Law & Ineq. J. 155, 157 (1983)).

Given the history and persistence of discrimination in this society, it is clear that "[m]eritocracy is not the cure for racial inequality; it is `part and parcel' of the problem." Robert L. Hayman, Jr., The Color of Tradition: Critical Race Theory and Post-Modern Constitutional Traditionalism, 30 HARV. C.R.-C.L. L. REV. 57, 101 (1995) (footnote omitted). Furthermore,

[o]vert exclusion of blacks from public and private institutions of education and employment was one massive affront to meritocratic pretensions. Moreover, a long-standing and pervasive feature of our society is the importance of a wide range of nonobjective, nonmeritocratic factors influencing the distribution of opportunity. The significance of personal associations and informal networks is what gives durability and resonance to the adage, "It's not what you know, it's who you know."

KENNEDY, supra note 12, at 1332-33.

63. See BERGMANN, supra note 10, at 20. In discussing whether the "best" person for the job is always the one selected, Bergmann made the following comment:

Almost all the surgeons in the United States are white males. The absence of affirmative action in the surgical field by no means guarantees that the most qualified person is always selected. . . .

A lot of bad surgery is performed, and some of those currently excluded from training might well do better than some who are currently included. . . . Without that pressure [of numerical goals], those who are comfortable with the white male near-monopoly in the field will continue to make decisions ensuring that almost all new surgeons are white males.

Id. at 20-21.

64. See id. In terms of Western civilization as a whole, the almost complete restriction of positions of power to white males has had some devastating results. See id. at 21-22. For example,

Among the monarchs remembered as outstanding in fostering their people's well-being, women figure far out of proportion to the total number who have been allowed to reign. Queen Elizabeth I of England, Queen Christina of Sweden, and Catherine the Great of Russia are all remembered as more hospitable to modernizing forces and far less wasteful of their countries' resources in warfare than were their male counterparts. Had rules of monarchial succession not favored males, the history of the human race might be a happier one.

Id. But see generally WILLIAM A. HENRY III, IN DEFENSE OF ELITISM (1994) (discussing how in the United States, a number of the most privileged beneficiaries of pre-affirmative action exclusion staunchly defend elitism and the notion of meritocracy).

65. See KENNEDY, supra note 12, at 1327-29.

[T]he benefits of affirmative action redound not only to blacks but the nation as a whole. For example, the virtual absence of black police even in overwhelmingly black areas helped spark the ghetto rebellions of the 1960s. The integration of police forces through strong affirmative action measures has often led to better relations between communities of color and the police, a result that improves public safety for all. Positive externalities have accompanied affirmative action programs in other contexts as well, most importantly by teaching whites that blacks, too, are capable of handling responsibility, dispensing knowledge, and applying valued skills.

Id. at 1329 (footnotes omitted).

66. See Wilkins, supra note 19, at 416. ("Though the centuries of cultural preference enjoyed by white males still overwhelmingly skew power and wealth their way, we have in fact achieved a more meritocratic society as a result of affirmative action than we have ever previously enjoyed in this country.").

67. See Barbara Flagg, "Was Blind, But Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 957 (1993) (identifying a transparency phenomenon: "the tendency of whites not to think about whiteness, or about norms, behaviors, experiences, or perspectives that are white-specific). Transparency often is the mechanism through which white decisionmakers who disavow white supremacy impose white norms on blacks. See Martha Minow, The Supreme Court, 1986 Term--Forward: Justice Engendered, 101 HARV. L. REV. 10, 68 (1987) ("Power is at its peak when it is least visible, when it shapes preferences, arranges agendas, and excludes serious challenges from discussion or even imagination." (footnote omitted)).

68. See DLR No. 147, supra note 6, at 25-30. Approximately 16 states have bills or resolution to strengthen or expand affirmative action programs, some of which also have measures in opposition. See id. Some of the states include Hawaii, Illinois, Louisiana, Michigan, Nevada, New Jersey, New York, Ohio, Rhode Island. See id.

69. See id. at 46. In a Memorandum for Heads of Executive Departments and Agencies on Affirmative Action on July 19, 1995, President Clinton stated,

While our nation has made enormous strides toward eliminating inequality and barriers to opportunity, the job is not complete. As the United States Supreme Court recognized only a month ago in Adarand Constructors, Inc. v. Pena, "[t]he unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it." This Administration will continue to support measures that promote opportunities in employment, education and government contracting for Americans subject to discrimination or its continuing effects. In every instance, we will seek reasonable ways to achieve the objectives of inclusion and anti-discrimination without specific reliance on group membership. But where our legitimate objectives cannot be achieved through such means, the Federal Government will continue to support lawful consideration of race, ethnicity, and gender under programs that are flexible, realistic, subject to reevaluation, and fair.

Id. at 45 (alteration in original) (quoting Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2117 (1995)).

70. See STEPHEN L. CARTER, REFLECTIONS OF AN AFFIRMATIVE ACTION BABY 4-5 (1991).

71. I grew up in Savannah, Georgia and attended public schools throughout my time there. When I graduated in 1968 the public schools were still segregated along racial lines. Though Brown v. Board of Education, which ended segregation in public schools, was decided in 1954, it did not have any significant impact in Savannah until 1967, when a "freedom of choice plan" was adopted. Although the plan unified the dual system, very few black students chose to attend the white schools, and certainly no white students transferred to the black schools. So, my entire primary and secondary education occurred under segregated conditions. Though there were serious structural inequities and psychological stigma that this system created, I was also blessed to have some wonderful, dedicated and brilliant teachers. Their perspectives on education and learning should be studied and analyzed as we struggle to find answers to the present educational crisis.

72. See Wilkins, supra note 19, at 410, 412.

It goes without saying . . . that blacks and whites remember America differently. The past is hugely important since we argue a lot about who we are on the basis of who we think we have been, and we derive much of our sense of the future from how we think we've done in the past. . . . [I]n such a vacuum, people tend to weave historical fables tailored to their political or psychic needs.

Id. at 410. This "amnesia" is also called "denial," which

is used to obliterate the facts that created the need for the remedy in the first place . . . .

. . . .

Denial of racism is much like the denials that accompany addictions to alcohol, drugs or gambling. . . . [M]any racist whites are so addicted to their unwarranted privileges and so threatened by the prospect of losing them that all kinds of defenses become acceptable, including insistent distortions of reality in the form of hypocrisy, lying or the most outrageous political demagogy.

Id. at 412.

73. See id. at 410. "`The American Negro has the great advantage of having never believed that collection of myths to which white Americans cling: that their ancestors were all freedom-loving heroes, that they were born in the greatest country the world has ever seen . . . .'" Id. (quoting James Baldwin, The Fire Next Time 115 (1963)).

74. See id. at 412.

According to The Washington Post, [House Speaker Newt] "Gingrich dismissed the argument that the beneficiaries of affirmative action, commonly African Americans, have been subjected to discrimination over a period of centuries. `That is true of virtually every American,' Gingrich said, noting that the Irish were discriminated against by the English, for example."

Id. (quoting House Speaker Newt Gingrich).

75. See FEAGIN & VERA, supra note 22, at 2 ("[B]lack and other minority victims of racial oppression typically pay a direct, heavy, and immediately painful price for racism, while white discriminators and onlookers usually pay a more indirect and seldom recognized price." (emphasis in original)).

76. See id. at 6. The argument that present-day white males should not have to pay the price to remedy past racial discrimination

fails to take into account the many ways in which young whites have benefitted from their forebears' access to land, decent-paying jobs, and wealth at a time when most African Americans were excluded from those things. Two decades of modest government remedial programs like affirmative action have not offset several hundred years of white advantage.

Id. There are numerous continuing advantages enjoyed by beneficiaries of affirmative inclusion. See Hayman, supra note 62, at 100. For example, the seniority of white workers, which often works to insulate them from layoffs, must be seen in its true light: "[T]he cumulative result of a living tradition of racial discrimination in employment." Id.

77. See FEAGIN & VERA, supra note 22, at 8-9.

White racist practices represent socially sanctioned ways of dissipating much human talent and energy . . . Americans should see white racism for what it actually is: a tremendously wasteful set of practices. legitimated by deeply embedded myths, that deprives its victims, its perpetrators, and U.S. society as a whole of much valuable human talent and energy and many social, economic, and political resources.

Id.; see also Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 DUKE L.J. 705, 708 (1990). Professor Duncan Kennedy recognized that the society has suffered a "sense of loss from the way we [sic] have been diminished by isolation from what the subordinated cultural communities of the U.S. might have contributed to our [sic] lives, intellectual, political and personal." Id. It has also been observed that "racist and sexist whites who are not able to accept the full humanity of other people are themselves badly damaged--morally stunted--people." Wilkins, supra note 19, at 414.

78. See FEAGIN & VERA, supra note 22, at 170. We must consider this principle quite carefully in relation to the racism which pervades American society and which creates the current need for affirmative action. See id.

In philosophy and practice white racism undermines the moral authority [of the society's legal and political institutions]. . . . Racism is also contrary to the fundamental principle of "liberty and justice for all." Racism, with its exercise of physical and symbolic violence against people of color, cannot be reconciled with this basic principle except through persisting sophistry.

Id. at 170-71.

79. See id. at 1.

Anger and rage at white racism lay behind the Los Angeles uprising and the many other black rebellions that have taken place since the 1930s. Referring to the likelihood of additional urban uprisings following the Los Angeles riot, Housing and Urban Development Secretary Henry Cisneros argued that Alike piles of dry wood with red hot coals underneath, scores of American cities can ignite--because of America's "dirty secret": racism.

Id.

80. See Burns, supra note 8, at 439.

Relieving human suffering and providing others with meaningful opportunities for fulfillment--as, for example, in offering a university education for the disadvantaged--requires a spiritual renaissance, invoking the teachings and practices inherent in every religious tradition. In the West, where spiritual traditions have been buried so much deeper, this task "may require some digging," but the awareness of out profound interconnectedness is there to be unearthed.

Id. (quoting C. SPRETNAK, THE SPIRITUAL DIMENSION OF GREEN POLITICS 47 (1986)).

81. Affirmative action, like any social policy, does not come without a cost attached. Those on each side of this debate are responsible for paying some of that cost. One of the major problems with the debate about affirmative action is that one side argues that the costs are too high, while the other side pretends that there are no cost. Both sides are wrong. When we make decisions that incorporate race and gender into the analysis, and the outcome is influenced in some part because of that analysis, then someone is denied an opportunity, benefit or privilege that they might have received with a different type of analysis. Likewise, when we fail to take into account the historic and continuing effects of discrimination we ask certain people to pay a price for the wrongs of the past. Even the existence of affirmative action requires the beneficiaries of the policy to pay a cost. Some describe that cost in terms of "stigma;" others describe it as a lack of confidence in their own ability. What all of us must realize is that wherever we come out in this debate, someone will be asked to make some sacrifices. It is only when all of us are willing to make sacrifices that we will get to the deeper source of the problem to find more viable solutions.

82. See Burns, supra note 8, at 453 ("We must learn to ask whether the choices we make and the lifestyles we adopt contribute to the suffering or to the support of others."). We must learn to ask ourselves questions which have no easy answers, questions which require us to listen attentively to our own inner voice, questions such as, "`How do we develop both the quietness of mind that allows us to hear the deepest spiritual truths, and the openess [sic] of heart that engages us fully with our humanity?'" Id. at 454-55 (quoting Ram Dass, Compassion: The Delicate Balance, Seva, Fall-Spring 1989-90, at 6).

83. See Burns, supra note 8, at 455.

As we quiet our minds, our hearts begin to open, and we discover that our own innate generosity arises spontaneously out of equanimity . . . .

. . . .

. . . When we understand that the purpose of mindfulness is to create a clarity and a centeredness whereby we can . . . bring renewed energy to our efforts to eliminate the forces against liberation and enlightenment--namely unequal opportunity and injustice--then our affirmative actions toward opening university doors to those among us who have never had an equal chance is simply the natural thing to do.

Id. at 455-56.