People often ask me to predict how current events are shaping the
future of affirmative action. The wonder aloud about the legality of
initiatives to recruit, action, and promote Black faculty and
administrators. My response may vary somewhat, depending on the purpose
of the question and the questioner. But, invariably, I make one point
emphatically: The pendulum tends to swing back and forth in response to
the political climate of the country, but the backward arcs have never
been dramatic — especially in comparison with the wider swings forward.
As a lawyer, an equal opportunity/affirmative action administrator,
and as a seasoned civil rights activist, I have paid close attention to
the difference between rhetoric and results. We’ve endured a great deal
of rhetoric, but little has actually changed in the law for the country
as a whole.
Still, questions persist about the future of affirmative action.
More often than not, they are based on Proposition 209 and the Hopwood
decision. The continued references compel explanations, and we must be
willing to give them — over and over again.
Proposition 209 applies only to California’s public institutions
and programs, and carves out an exception — as it must — to permit
public entities to engage in affirmative action programs mandated by
federal law.
The Hopwood decision, involving the University of Texas Law School
admissions program, applies only no public educational institutions in
the Fifth Circuit — Texas, Louisiana, and Mississippi. The U.S.
Supreme Court’s decision in the Bakke case, which permits the use of
race as a factor in admissions decisions, is still good law in every
other jurisdiction according to reputable legal scholars. The program
outlawed by Hopwood involved the use of a dual admissions policy based
on race that was suspect. Its demise was predictable. Race can never be
the sole factor or the determining factor in admissions — or
employment — decisions.
So what can we do now to recruit, retain, and promote Black faculty
and administrators without worrying about whether or not it is lawful?
Private schools using private funds may, generally, continue to
implement their affirmative action programs — whether based on
mandatory compliance with Executive Order 11246 (which pertains to
federal contractors) or on voluntary compliance permitted by Title VII.
The anti-affirmative action rulings on racial classifications that have
not withstood the court’s strict scrutiny test, which requires a
compelling governmental interest to justify the classification, apply
to public institutions.
