With the absence of Antonin Scalia on the U.S. Supreme Court and Elena Kagan recusing herself, the upcoming ruling on Fisher v. Texas could take on a different feel. Associate Professor of History Touré Reed discusses the history of affirmative action, and called it a hard-won victory that must be defended.
In 2008, Abigail Fisher—who hails from Sugarland, an upscale Houston suburb—filed a lawsuit alleging she had been denied admission to University of Texas-Austin because of race conscious admissions policies. As many others have noted, Fisher was not denied admission to University of Texas-Austin because of affirmative action.
Affirmative action has been the source of controversy for about as long as it has existed, but its positive impact is undeniable. The anti-discrimination and recruitment policies that fall under the umbrella of “affirmative action” have opened up opportunities for women and racial minorities in fields that had been largely closed off to them by either formal or informal barriers.
Affirmative action policies have also contributed to making the workplace fairer for everyone, since fear of contract forfeiture and litigation has compelled even non-union employers to establish formal guidelines for hiring, promoting, and firing employees. Moreover, white men actually account for the bulk of those filing age discrimination lawsuits. Simply put, a Supreme Court ruling that affirmative action is unconstitutional would constitute a blow to democracy itself.
Still, those who seek to defend affirmative action—and I am among such people—would be wise to situate it in a broader historical frame than recent controversies and consider the labor origins of anti-discrimination measures.
Black labor activists played an important role in the enactment of anti-discrimination legislation during the modern civil rights movement. African-American labor and civil rights activist A. Philip Randolph and the Brotherhood of Sleeping Car Porters successfully used the threat of a march on Washington in the 1940s to pressure President Franklin D. Roosevelt to issue Executive Order 8802, barring discriminatory employment practices among defense contractors and federal agencies during World War II. Randolph, Bayard Rustin, and the Negro American Labor Council, would go on to organize the 1963 March on Washington, which played a role in the passage of the Civil Rights Act of 1964.
The case for affirmative action—like unionization before it—proceeded from the view that anti-discrimination policy was in the public interest. Prior to the 1935 Wagner Act, “freedom of contract” limited the government’s authority to regulate the employer-employee relationship. The Great Depression, however, led the drafters of the Wagner Act— Senator Robert Wagner and his assistant Leon Keyserling—to argue that the right to collective bargaining was essential to redressing the problem of under-consumption that had caused the protracted economic downturn. The Wagner Act and the labor movement it helped spawn are perhaps the clearest expression of the social-democratic impulses informing the old New Deal Democratic coalition. And while the New Deal had significant limitations, its efforts to enhance the purchasing power of working people—centered on fostering a more stable form of capitalism—established a framework for a rights discourse that would prove indispensable to African-American civil rights.
Though the history of federal workplace anti-discrimination initiatives dates back to the New Deal, the start of the modern era of anti-discrimination policy is generally seen as President John F. Kennedy’s 1961 Executive Order 10925, which authorized the federal government to cancel contracts with vendors who failed to take “affirmative action” to redress employment disparities. Simply put, the civil rights movement’s victories required an interventionist state—as was understood by all of the principal players, on both sides, at the time.
If the history of the modern civil rights movement has any lessons for us today, then one is that those who imagine a world in which black and brown people might achieve racial equality in the absence of a social-democratic politics “want crops without ploughing the ground; they want rain without thunder and lightning; they want the ocean without the awful roar of its many waters.” Though far from the most radical option on offer, affirmative action was the product of a social-democratic vision and is best defended by a politics that presumes the proper role of government is to foster economic stability and security for its citizens.