The U.S. Supreme Court ignited furious debate in op-ed sections across the country last week when they agreed to revisit a 1995 affirmative action case in which Adarand Constructors Inc. sued the U.S. Department of Transportation for awarding a lucrative contract to a minority-owned company, despite the fact that they were outbid.
The contract was awarded as part of a government program designed to offer minority-owned businesses special help. The rationale being that businesses with 51 percent minority ownership are inherently disadvantaged. Adarand charged that the policy amounted to reverse racism.
To some degree, the Supreme Court agreed. In a move that sent shock waves through the civil rights community, the justices set strict standards for race-based government action.
Or, as Justice Scalia put it: "government can never have a compelling interest in Page IV discriminating on the basis of race in order to make up for past racial discrimination in the opposite direction. Under the Constitution, there can be no such thing as either a creditor or a debtor race. We are just one race in the eyes of government."
Affirmative-action advocates, many of whom feared that the decision would foretell a new chilliness between the government and their cause, ferociously contested everything about this decision. The wagons were quickly circled and a chow line of racial prophets began toting a similar tune, best surmised by Justice Brennan's own famous invocations on race-based action: Affirmative action was "designed to break down old patterns of racial segregation and hierarchy ... to open employment opportunities for Negroes in occupations which have been traditionally closed to them. ... To break down old patterns of racial segregation and hierarchy."
For obvious reasons, the racial prophets neglected to mention that when Justice Brennan uttered these words in 1979, he never intended affirmative action to become a permanent plan.
Still, affirmative-action advocates continue to invoke Justice Brennan's eloquent words. But, in an odd way, their defense of affirmative action as an absolute truth may lead them down a slippery slope. Is affirmative action, in fact, an absolute right? Should perfectly competent adults be judged on the fact that their great-great-grandparents may have been slaves? Should full-grown, capable adults blame the missed opportunities of their lives on the slavery that transpired centuries ago? If affirmative action is an absolute and unwavering right, then the answer to these questions is yes.
In 1995, the Supreme Court asserted a different perspective: That while the government is not disqualified from issuing race-based action, it ought not presume victim status for all members of a fixed group. In the absence of any compelling evidence that minorities are actually earning less because their great-great-grandparents were slaves, race-based action ought to be subject to at least some scrutiny. After all, while the laws may be an instrument of civil rights, they are not an instrument of social retribution. (see Nazi Germany, Islamic fundamentalists experiments, Salem witch hunts).
As it turned out, the hubbub about how the 1995 Supreme Court decision would send minority businesses careening into a black hole proved a bit overstated. In fact, according to The U.S. Census Bureau, the number of minority-owned businesses rose 60 percent since the decision. It seems the presumption that minorities are inherently disadvantaged was widely exaggerated. Go figure.
As the Supreme Court prepares to revisit the 1995 case, those activists who are the most vigorous defenders of our civil rights, remain hamstrung by the unwavering belief that affirmative action is an absolute right.
It would be nice if our racial prophets didn't typecast their followers as absolute victims of a centuries old institution.
Instead, they have chosen a far more precarious position: That of passive destroyers of any hope we might have to move beyond those initial steps taken with the civil rights legislation of the '60s.