In the past three decades, courts have chipped away at the use of the corrective justice basis for voluntary, race-based inclusion policies. Organizations practicing such policies have shifted to utilitarian rationales that emphasize the value of diversity. As this diversity framework has become institutionalized, new coalitions of powerful pro-diversity interests have sidelined traditional civil rights organizations from the public spotlight in their mobilization efforts to fend off “colorblind” litigation and ballot measures. As can be seen in both the 2003 Grutter v. Bollinger lawsuit over admissions policies at the University of Michigan Law School and also in the battle over Michigan's Proposal 2 on the November 2006 ballot, the coordinated legal and political defense of affirmative action has deemphasized rights-based logic, instead privileging instrumental arguments rooted in the benefits accruing to organizations as a result of diversity.Footnote 1
According to the conventional, civil rights framework for analyzing affirmative action policy and politics, the debate over this controversial issue is fundamentally a partisan and ideological struggle over the principle of equality.Footnote 2 According to this framework, liberal and Democratic voters, interest groups, and lawmakers embrace the anti-subordination principle—which Siegel defines as “the conviction that it is wrong for the state to engage in practices that enforce the inferior social status of historically oppressed groups”Footnote 3—and view affirmative action as central to the civil rights agenda. In contrast, opposition to affirmative action according to the civil rights framework is primarily rooted in adherence to the anti-classification principle—which Siegel defines as “the constitutional principle that government may not classify on the basis of race”Footnote 4—and comes largely from conservatives and Republicans, who view the granting of “special rights” to women and racial minorities as “reverse discrimination” against whites and males.”Footnote 5
Of course, each side of the conflict claims to take the high road of adherence to principles while accusing the other side of pursuing self-interest or even bigotry. Many affirmative action proponents attribute opposition to self-interest and backlash rooted in racial resentment.Footnote 6 Conversely, many affirmative action opponents accuse government and organizations of caving in to “special interest” pressure by liberal civil rights groups and “civil rights professionals,”Footnote 7 who create a “racial spoils system” out of self-interest.Footnote 8 According to the civil rights framework, each side views its own agenda as promoting civil rights, even if each side may view the opposing side as pursuing a self-interested agenda.
The civil rights framework remains the prevailing framework employed by scholars, journalists, lawmakers, and ordinary citizens to understand affirmative action. In contrast, a number of scholars have applied a utilitarian, diversity framework to analyze the emergence of a variety of affirmative action that has been severed from its civil rights roots. Such authors emphasize that, since the early 1980s, affirmative action has garnered substantial support especially from high-profile leaders of corporations, the Republican Party, and executive agencies (including most notably the Department of Defense).Footnote 9 Some of these scholars argue that distinct varieties of affirmative action have emerged that are separate from the original, rights-based affirmative action. For example, Frymer and Skrentny distinguish instrumental affirmative action from rights-based affirmative action in the following way: “[Instrumental affirmative action is] more likely to emphasize economics, community and social stability… And unlike traditional affirmative action law, its logic is based on considerations of the present or future, ignoring historical discrimination and in turn, ignoring structural power differences.”Footnote 10 Other scholars claim that the core affirmative action policy remains intact and largely unchanged but identify differing rationales employed to justify the same policy.Footnote 11
I first make the case for a revised terminology to more precisely categorize and analyze the population of racial inclusion policies. In this section, I situate both race-based affirmative action and related race-based diversity policies within an overarching set of racial inclusion policies. The second section traces the civil rights roots of early race-based affirmative action policies. I then examine the gradual rise of organizational diversity policies as supplementing or displacing rights-based affirmative action policies. Next, I argue that the Supreme Court case (Grutter v. Bollinger) in 2003 concerning race-conscious admissions at the University of Michigan along with the 2006 ballot measure (Proposal 2) banning affirmative action in Michigan serve as evidence of the realignments from rights-based affirmative action practices to instrumental-based diversity practices. This section also incorporates the 2007 Supreme Court ruling in Parents Involved in Community Schools v. Seattle School District No. 1 Footnote 12 to support my argument that recasting rights-based affirmative action into organizational diversity policies has contributed to protecting the habitat of such race-conscious diversity policies. In this new form, race-conscious inclusion policies have become more institutionalized—and much less endangered—than many experts have thus far predicted. The conclusion speculates on the future lifespan and development of these race-conscious diversity measures that are commonly, but problematically, still called “affirmative action” policies. Finally, I analyze numerous scholars' calls for the renewal of rights-based affirmative action alongside organizational diversity policies.
A Revised Typology for Categorizing Racial Inclusion Policies
This section sets out to situate rights-based affirmative action and instrumental based-diversity policies within a more precise typology of the larger set of racial inclusion policies. “Affirmative action” continues to be commonly used as a catch-all label for all race-conscious policies that seek racial diversity. In contrast, a smaller number of scholars have argued that affirmative action has been partially or entirely replaced by “diversity management” or related diversity policies.Footnote 13 Still other scholars have found that a substantial percentage of organizations and government agencies continue to enact the same policy with no or few substantive changes by merely replacing civil rights rationales with diversity rationales to bolster the legal defense of affirmative action policies or renaming their affirmative action policies as diversity or diversity management policies.Footnote 14
The initial meaning of affirmative action when the concept and policy originated in the 1960s is much more akin to what today is called equal opportunity or aggressive enforcement of non-discrimination.Footnote 15 The aggressive, “hard” policy that has become central to the contemporary definition of affirmative action existed alongside “soft” affirmative action since the inception of affirmative action. Organizations employ soft affirmative action when they make active efforts to include individuals from historically excluded racial groups by increasing the pool of applicants at early stages so that hard affirmative action at later stages becomes less necessary. Today, the usage of the phrase affirmative action generally corresponds to hard affirmative action; that is, the concept of affirmative action is used to refer to special consideration (whether goals and timetables, preferences, or—in certain rare cases—quotas) being granted to members of previously excluded racial groups.Footnote 16 In the early years of affirmative action, one type of hard affirmative action practice in the employment sector involved courts requiring employers to award seniority to African American employees based on when they should have been promoted upon findings of actual discrimination. In higher education today, the awarding of preferences in the admission process to applicants from underrepresented racial groups is one common form of hard affirmative action.
Whereas many critics frame affirmative action as preferences for preferences' sake, this is not in line with the original intent or core meaning of affirmative action. Policies preferring racial minorities should be referred to as affirmative action policies only if they are rooted in a civil rights justification. Two policies may be functionally equivalent, but one may be designed with the rights-based goal of corrective justice and another may be explicitly designed as an instrumental policy to achieve diversity in order to improve national security or corporate sales. Both are racial diversity policies. But only the former, according to commonly accepted definitions, is an affirmative action policy.
While this distinction may seem merely semantic, it is in most cases not in practice. When leaders of institutions rely on race-conscious diversity policies in order to improve their performance, they feel no sense of obligation to provide special consideration either to socio-economically disadvantaged minorities or to members of historically subordinated minority groups. As I explain below, “affirmative action” policies in education, employment, and contracting have increasingly benefited privileged immigrants of color at the expense of African Americans, American Indians, and Hispanics. In addition, Kelly and Dobbins raise additional economic concerns about recasting affirmative action as diversity policy: “But precisely because it is founded on cost-benefit analysis rather than on legal compliance, perhaps diversity management will come under the ax of corporate budget-cutters when America faces its next recession.”Footnote 17
The term affirmative action has been—and continues to be—misused so pervasively and flagrantly that established scholars have joined pundits in mislabeling preferences for legacies and other privileged whites or males as “affirmative action for whites” or “affirmative action for legacies.” For example, Massey refers to affirmative action for minorities, for athletes, and for legacies as “America's Three Affirmative Action Programs,”Footnote 18 and Katznelson refers to the era of New Deal-era social welfare policies that privileged whites and largely excluded blacks as the era “when affirmative action was white.”Footnote 19 Proponents of affirmative action commonly argue that President George W. Bush is hypocritical for opposing race-based affirmative action because he himself was an affirmative action legacy recipient at Yale University.Footnote 20 But these are abuses of language, given that the concept “affirmative action” by virtually all accepted definitions refers to a policy that provides special consideration to women or racial minority applicants in an effort to further equality by including members of groups that have historically been subordinated. Preferences for whites, males, legacies, and athletes fail to contain the civil rights component of equality concerns needed to be considered affirmative action policies; neither has suffered from a history of subordination.
I designate the term “racial inclusion policies” for the broad set of policies that seek the outcome of racial diversity by striving to include members of historically marginalized racial groups. Figure 1 provides a typology of racial inclusion policies in a two-by-two grid, where the rows distinguish between policies rooted in civil rights rationales versus organizational diversity rationales and the columns distinguish between measures that use race-conscious means versus race-neutral means to achieve racial diversity.
A typology of racial inclusion policies
This terminology is more precise than the commonly used labels because it distinguishes racial inclusion policies according to their core components: who is targeted (beneficiaries), how the policy operates (methods), and why the policy exists (rationale). Instead of on the one hand heeding calls to eliminate the phrase affirmative action from the lexicon or on the other hand overusing it to describe policies counter to its core meaning, the typology I propose relies on precise and relatively concise language to more effectively and accurately categorize and analyze policies designed to achieve racial inclusion and diversity.
The Civil Rights Roots of Affirmative Action
While a small number of scholars have traced the genesis of race-based affirmative action to War Department policies and Public Works Administration (PWA) policies in the 1930s,Footnote 21 such governmental actions have more commonly been considered precursors to affirmative action. The emergence of affirmative action in the U.S. dates back to Presidents Kennedy (via Executive Order 10925), Johnson (via Executive Order 11246), and Nixon (via the Department of Labor's institution of the Revised Philadelphia Plan).Footnote 22 In its inception, proponents supported a policy that was rooted in a group-based vision of equality.Footnote 23
Non-discrimination policies were seen by early affirmative action supporters as necessary but not sufficient to achieve this goal. Early on, President Lyndon Johnson articulated this case for group-based equality in his remarkable Howard University commencement speech, arguing that it would be highly problematic to “take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, ‘you are free to compete with all the others,’ and still justly believe you have been completely fair.”Footnote 24 Supreme Court Justice Harry Blackmun lent his voice to this group-based argument when he wrote in his Regents of the University of California v. Bakke dissenting opinion that “in order to get beyond racism, we must first take account of race. There is no other way.”Footnote 25 In contrast, “colorblind” advocates call for a competing vision of equality that relies on equal opportunity at the individual level.Footnote 26 In accordance with this view, to quote Justice Harlan, “Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.”Footnote 27 Colorblind supporters argue that racial preferences constitute reverse discriminationFootnote 28 and, to quote John F. Kennedy, that “race has no place in American life or law.”Footnote 29 Current Supreme Court Justices Scalia and Thomas have continued to adhere to this conception of colorblindness.
While even early affirmative action policies targeted other racial minorities in addition to African Americans,Footnote 30 the debate primarily centered on whether and how to give special consideration for African Americans.Footnote 31 The early and enduring extension of race-based affirmative action to Hispanics, Native Americans, Aleuts, Asian Americans, and other racial and ethnic minorities in employment,Footnote 32 contracting,Footnote 33 and university admissionsFootnote 34 occurred with little deliberation or guidance. The inclusion of these other groups comprising America's “official minorities”Footnote 35 has provided further grounds for criticizing affirmative action, for opponents argue that the policy has become a patronage systemFootnote 36 awarding benefits to people of color without rooting the race-targeting in coherent, consistent civil rights justifications. Instead, in the eyes of critics, race-based affirmative action has become a policy that punishes whites (and Asians) for their honesty in self-identifying as white and rewarding African American, Hispanic, and American Indian applicants merely for checking these arbitrary “little boxes” on application forms.Footnote 37
Publicly-stated civil rights rationales might serve as a cover for instrumental motives. Karabel's research about the development of admissions policies at Harvard, Yale, and Princeton found that “fear of social disintegration” during the urban racial unrest of the late 1960s—rather than civil rights commitments—motivated the creation of vigorous race-based affirmative action policies at these “Big Three” Ivy League universities. Karabel's research uncovered that “the dominant theme in the texts of the period was neither diversity nor compensation for past injustices, but rather the need for ‘Negro leadership’” to steer black urban communities past the perceived crisis of urban racial unrest.Footnote 38 This crisis management explanation for the genesis of affirmative action in higher education is consistent with a body of scholarship tracing the role of crisis management in the emergence of affirmative action in both employmentFootnote 39 and contracting.Footnote 40
Regardless of the strategic political motives behind the origins of affirmative action, the definitional distinction still holds that racial inclusion policies are not affirmative action policies unless they are implicitly or explicitly rooted in a civil rights rationale of seeking to achieve equality by actively including members of historically excluded racial groups. The next section analyzes the gradual expansion of organizational diversity policies, which in some cases replaced and in other cases supplemented rights-based affirmative action policies.
The Institutionalization of Racial Diversity Policies
Scholars of affirmative action understandably greet attempts to make sweeping generalizations about the transformation of affirmative action and related racial diversity policies with great suspicion, for the development of particular policies varies tremendously. After all, the historical context of affirmative action differs greatly across the sectors of education, employment, and contracting. As difficult and problematic as it may be to generalize about the development of affirmative action and racial diversity policies, certain trends have nonetheless extended across all three sectors. The most profound development has been that diversity policies in many realms have supplemented or replaced race-based affirmative action policies. As Frymer and Skrentny argue, “Affirmative action in the United States has been cut loose from its moorings in the nation's tragic history of racial oppression and the law that developed to remedy that oppression. Increasingly, it is rooted in strategies to maximize the performance of institutions.”Footnote 41
In all three sectors, race-based affirmative action emerged in part as a crisis management response at a time of race rioting in America's cities and of racial protests consuming many college campuses.Footnote 42 These instrumental arguments receded in government agencies, universities, and corporations, but they returned in the 1980s as a reaction both to the anti-affirmative action legal environment and to the accompanying rise of “diversity management.”Footnote 43 The discourse of diversity as a rationale for affirmative action originated in higher education, as is clear in Justice Powell's Bakke opinion. In the employment sector, the “Workforce 2000” report by the Department of Labor under President Reagan was influential in calling attention to the importance of reaching out to racial minorities who were absent from large sectors of the workforce.Footnote 44
The rise of diversity management as both supplement and alternative to affirmative action has been a profound development in the workforce. The concept of diversity management was first coined by R. Roosevelt Thomas,Footnote 45 who has devised a model for businesses to capitalize on the strengths associated with racial and other forms of diversity in all segments of business operations. According to Kelly and Dobbin, diversity management in practice relied primarily on the following strategies that had been repackaged from previously existing equal employment opportunity (EEO) and affirmative action (AA) programs: “announcing the organization's commitment to nondiscrimination, training managers and holding them accountable, providing career development advice, encouraging mentors and network contacts, and identifying career paths.”Footnote 46
Thomas has in places conceptualized diversity management as a race-neutral managerial policy that replaces affirmative action by “embracing diversity” without racial targeting and a reframing of affirmative action from a civil rights framework to an instrumental diversity framework.Footnote 47 In his seminal 1990 article, Thomas predicted that “sooner or later, affirmative action will die a natural death.”Footnote 48 On the other hand, this diversity management model, notes Kellough, “looked very much like traditional affirmative action” in many respects.Footnote 49 More recently, as Kellough argues, “beleaguered supporters of traditional equal employment opportunity and affirmative action… [have taken] refuge in the diversity management paradigm … as the decade of the 1990s advanced.”Footnote 50
Scholars of organizations have traced this rise of diversity management to a variety of interconnected factors: conservative judicial decisions that were highly restrictive of affirmative action created the incentive to institute diversity management, the professional socialization of equal employment opportunity and other diversity professionals fostered organizational support for diversity management, and legal ambiguity concerning the terms of compliance provided diversity professionals with the ample discretion needed to rework their policies.Footnote 51 In the context of adverse Supreme Court decisions and Democratic President Bill Clinton's lukewarm defense of affirmative action, affirmative action appeared to many experts to be endangered by the early 1990s.Footnote 52 Diversity specialists found in diversity management rhetoric a promising way to repackage equal employment opportunity and affirmative action programs.Footnote 53 The shift from affirmative action to diversity management programs was in part “old wine in new wineskins,”Footnote 54 but it also was a wise legal strategy in that “these specialists were able to prevent, or at least forestall, the deinstitutionalization of their programs and departments.”Footnote 55
Affirmative action in contracting was also marked by the shift from civil rights roots to diversity roots, especially in the 1980s and 1990s. As Anderson explains, affirmative action policy emerged in the contracting sector in the form of set-asides as a response to urban rioting in the mid- to late-1960s. As early as 1973, the Small Business Administration program defined disadvantaged people to include not only people of African descent but also those of Hispanic, Native American, and Asian descent. In many agencies, “disadvantaged” companies received financial bonuses or else winning bids if their bid was within 10 percent of the non-minority competitor companies' bids.Footnote 56 Anderson pointed out the taken-for-granted nature of this early expansion of affirmative action policies to the full cast of what Skrentny dubs “official minorities”;Footnote 57 bureaucrats received little political guidance and expanded the beneficiaries without any clearly formulated rationale.Footnote 58
In education, employment, and contracting, immigrants make up a significant proportion of beneficiaries. For example, a recent study by Massey has found that selective colleges and universities are sustaining or bolstering their black student enrollments by increasing admissions of upper-middle class, recent black immigrants from Africa, the West Indies, and Latin America at the expense of disadvantaged black Americans who suffer from the legacies of slavery and Jim Crow segregation.Footnote 59 The original intent of the university and contracting programs was to help African Americans of modest means. In contracting, too, many immigrants benefiting from affirmative action were and still are professionals (e.g., engineering, computer programmers, professors, etc.) rather than low-socioeconomic status African American beneficiaries.Footnote 60
The embrace of diversity in higher education emerged early on, as Karabel and Douglass have both documented in their research on elite private and public universities, respectively.Footnote 61 Early policies in the late 1960s were rooted in civil rights rationales alongside diversity and opportunity rationales. Justice Powell's Bakke opinion closed the door on remedying “societal discrimination” as a rationale for race-conscious admissions, but he provided what amounted to an advisory opinion with his praise of the race-conscious individual assessment policy employed by Harvard University that was justified in terms of the educational value of diversity. Except for specific universities—predominantly in the South—under consent decrees or court-mandated desegregation orders, situations in which quotas still are legal, selective universities largely abandoned civil rights rationales for their race-conscious admissions policies and instead prominently featured preferences rooted in the diversity rationale.Footnote 62
Scholars have found strong and longstanding commitments to promoting racial diversity among admissions professionals, faculty involved with admissions, and other top administrators at both selective undergraduate institutions and at professional schools.Footnote 63 When race-conscious admissions policies were banned by federal courts and ballot measures in several states beginning in the 1990s, university officials quickly instituted innovative race-neutral diversity policies, some of them cast in terms of overcoming students' disadvantage, in an effort to rapidly restore the racial diversity levels.Footnote 64 Such reforms have included individual assessment policies rather than formula-based admissions.Footnote 65 In addition, selective universities in Texas, California, and Florida seek to restore racial diversity levels by capitalizing on highly segregated school districts through “percentage plans,” which guarantee admission to students with the top grade point averages in their state high schools; such guarantees lead to admitting large numbers of African American and Hispanic students in states with large numbers of predominantly black and Hispanic high schools.
As public university leaders in California, Texas, Washington, and Florida were experimenting with creative “adversity policies,” university leaders in the rest of the country were bolstering their case for race-conscious admissions and rallying to the defense of the University of Michigan as its two court cases traversed their long and arduous path to the Supreme Court. The next section will analyze the instrumental nature of this support for race-conscious diversity policies, examining the 2006 Michigan Proposal 2 in addition to the Grutter v. Bollinger decision as further signs of the shift from rights-based affirmative action to organizational diversity policies.
Affirmative Action as a Debate between Conservative Supporters and Opponents
According to the civil rights framework, liberal civil rights organizations would line up to defend affirmative action as an essential policy to remedy discrimination and to ensure that African Americans be included in elite institutions from which they were historically excluded. One might expect that the Republican Party and its allied interests would take a firm stance against race-based affirmative action. And one might expect the debate over the fate of race-based affirmative action to hinge on principled debates over conceptions of equality. The strand of affirmative action scholarship that is rooted in the civil rights framework has portrayed the debate as generally falling along these partisan and ideological cleavages.Footnote 66 Much about the civil rights framework is correct, and thus the numerous scholars who portray the affirmative action debate in this way are able to make persuasive arguments about the conservative mobilization against race-based affirmative action.
However, to view the affirmative action controversy largely through the conventional, civil rights framework is to miss out on a transformation that has been underway over the past generation. On June 23, 2003, the United States Supreme Court handed down the landmark Grutter v. Bollinger decision. In a sharply divided 5-4 decision, Justice O'Connor's majority opinion held that diversity is a “compelling governmental interest” for race-conscious university admissions policies and that the University of Michigan Law School's particular policy constituted a “narrowly tailored means” of achieving this compelling governmental interest. Grutter v. Bollinger, and its companion, Gratz v. Bollinger, Footnote 67 reveal three major changes. First, as I have argued earlier, the racial diversity politics and policies have to a significant degree displaced rights-based affirmative action politics and policies. Second, the case for “affirmative action” in conflicts over litigation and ballot measures has increasingly privileged conservative arguments about business management and military cohesion while de-centering principled liberal arguments about social justice. In this sense, the debate over affirmative action—especially in litigation and ballot measures—has increasingly featured the rift among conservatives. This conservative debate has partially displaced the classic cleavage between liberals and conservatives. Rights-based colorblind conservatives increasingly view their cause as the David that is going up against the pro-affirmative action Goliaths (especially the military and Fortune 500 companies). Third, Republican Party leaders remain hesitant to actively oppose affirmative action, in large part for electoral reasons. I have already examined the first claim above. The following sections will elaborate on the second and third claims.
On the one hand, the shift from affirmative action to diversity policies has nudged racial policy and politics in a conservative directionFootnote 68 as attention focuses on how racial diversity helps large organizations to further their own interests rather than on how affirmative action can promote social justice for its recipients. On the other hand, these institutions' embrace of race-conscious diversity policies has transformed the institutions—and American law—in a liberal direction. These large organizations at least symbolically embrace tolerance and diversity, which are key components of the contemporary liberal paradigm of racial inclusion. And these organizations—by actively defending race-conscious diversity policies—have played an important role in stalling the conservative colorblind attack.Footnote 69 Thus, diversity professionals have transformed their organizations in a liberal direction, but in doing so they have also contributed to transforming affirmative action policy in a conservative, utilitarian direction.
In the Grutter decision, Justice O'Connor relied heavily on the amicus briefs filed by the military brass and Fortune 500 companies, which played a prominent role in the oral arguments for the cases in spring 2003. Note how O'Connor relies on both sets of briefs in her Grutter majority opinion:
These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Brief for 3M et al. as Amici Curiae 5; Brief for General Motors Corp. as Amicus Curiae 3-4. What is more, high-ranking retired officers and civilian leaders of the U.S. military assert that, ‘[b]ased on [their] decades of experience,’ a ‘highly qualified, racially diverse officer corps… is essential to the military's ability to fulfill its principle [sic] mission to provide national security.
Brief for Julius W. Becton, Jr. et al. as Amici Curiae 27.’Footnote 70O'Connor's notable focus on these briefs illuminated this transformation in affirmative action politics that has been underway for a generation.
Many scholars were surprised by these briefs in favor of the University of Michigan affirmative action policies.Footnote 71 Indeed, on one level, there are good reasons to be surprised. After all, the military and corporations are viewed as conservative both in their missions and workforces. Both have traditionally been associated as core constituencies for a Republican Party that has, for much of the latter half of the twentieth century, engaged in a southern strategy of “playing the race card” in order to lure white moderates from the Democratic Party.Footnote 72 Given the perception that proponents of affirmative action are disproportionately liberal, females, and people of color, it is surprising indeed to hear that such prominent military leaders and so many Fortune 500 companies would be lobbying for race-based affirmative action.
While this military and corporate support on instrumental grounds is a surprise to those who view the controversy as centered on rights-based affirmative action, for scholars of organizational behavior it is a predictable feature of a transformation that has been long in the making.Footnote 73 Most importantly, neither the military brief nor the corporate brief defended the University of Michigan admissions policies on civil rights grounds. Instead, the Fortune 500 companies defended race-conscious admissions by arguing that this policy is essential for the functioning of the companies themselves.
The corporate world has largely jumped on the racial diversity bandwagon as diversity professionals have persuaded corporate executives that a racially diverse workforce is important for several reasons. First, businesses' success in the global marketplace depends on employing workers who understand diverse marketplaces and who resemble the variety of racial makeup of the racially diverse customer bases. Second, corporations see a racially diverse workforce as an important recruiting tool—talented, young professionals increasingly view a racially diverse workforce as a valuable feature of their workplace. Third, the Fortune 500 companies' brief argued that, without race-conscious admissions, “the University's graduates will therefore be less likely to possess the skills, experience, and wisdom necessary to work with and serve the diverse populations of the United States and the global community.”Footnote 74 Finally, institutionalizing diversity policies and diversity rhetoric strengthens corporations' defenses against lawsuits alleging racial or gender discrimination.Footnote 75
The retired military leaders expressed their own distinct rationales for supporting race-based admissions in higher education. The argument is based on the need for cohesiveness and harmony in a hierarchical institution in which African Americans and Hispanics are overrepresented at the lower enlisted levels and underrepresented at the higher officer positions. The recruits in the lower, enlisted positions tend to come from the low-socioeconomic rungs of society, for the responsibility, security, and heroism of the military are especially appealing to citizens who are willing to accept the dangers and sacrifices because they see few preferable occupational opportunities.Footnote 76 As a result, it should be no surprise that African Americans and Hispanics—who are overrepresented nationally in the lower socioeconomic levels—would be overrepresented at the lower, enlisted positions of the military. According to the brief, “today, almost 40% of servicemen and women are minorities; 61.7% are white, and the remaining almost 40% are minorities, including 21.7% African-American, 9.6% Hispanic, 4% Asian-American and 1.2% Native American.”Footnote 77
The military brief is remarkable in its tone, as the authors argue that the continuation of race-conscious admissions in the Reserve Officers' Training Corps (ROTC) and the military academies is essential for the military, which in the 1970s was on the verge of self-destruction because of racial tensions. According to the brief, the stakes are incredibly high: “A substantial difference between the percentage of African-American enlisted personnel (21.7%) and African-American officers (8.8%) remains. The officer corps must continue to be diverse or the cohesiveness essential to the military mission will be critically undermined.” The brief raises concerns that many enlisted personnel of color are troubled by how their largely white superiors treat them. The retired military leaders argued that affirmative action is necessary to increase the pool of officers of color: “At present, the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC use limited race-conscious recruiting and admissions policies.”
The corporate and military support poses a major obstacle to the conservative colorblind cause. Major corporations were successfully rallied by the Republican Mayor of Houston to oppose Measure A, a ballot measure to ban race-based affirmative action in the public sector.Footnote 78 While conservative millionaires, including Steve Forbes and Rupert Murdoch, and wealthy conservative foundations provide extensive funding to the colorblind ballot initiatives (the 1996 Proposition 209 in California, the 1998 Initiative 200 in Washington state, and the 2006 Proposal 2 in Michigan),Footnote 79 the major corporations in each state funded the pro-affirmative action causes in all three states.Footnote 80 In the case of Proposal 2, dozens of Michigan business leaders were among the co-chairs for One United Michigan, the coalition in Michigan defending affirmative action against Proposal 2.Footnote 81 This included leaders of AT&T Michigan, Blue Cross-Blue Shield of Michigan, Henry Ford Health System, General Motors Corporation, Ford Motor Company, and DaimlerChrysler Corporation.Footnote 82
While corporate leaders may be becoming more vocal about their support for race-conscious diversity policies in the past decade, this business case for race-conscious diversity policies is by no means new. Many scholars have documented the emergence of a significant business case for affirmative action during the 1980s.Footnote 83 As the next section explains, support for affirmative action among the Republican leadership has similarly become more vocal in the past decade even though it can be traced back even a generation earlier.
Where Are the Republican Leaders against Affirmative Action?
According to the conventional civil rights framework, liberals and Democrats generally support race-based affirmative action while conservatives and Republicans largely identify with the colorblind agenda. Numerous contemporary scholars of affirmative action continue to view affirmative action through this civil rights framework.Footnote 84 While I do not deny that much of the vocal and active contemporary opposition to affirmative action originates from conservative Republicans, I emphasize in this section how little support the colorblind cause finds among Republican leaders.
Republican strategists have wisely counseled Republican lawmakers to tread carefully before following in the footsteps of former California Governor Pete Wilson, who sought to gain politically from an anti-affirmative action agenda. In his memoir, Ward Connerly is highly critical of numerous Republicans—including Colin Powell and J.C. Watts—for supporting race-based affirmative action and of many more—including Bob Dole, Elizabeth Dole, George H. W. Bush, George W. Bush, Jeb Bush, and Jack Kemp—for waffling or distancing themselves from the “colorblind” cause.Footnote 85 Former Michigan Republican Party Chairwoman Betsy DeVos and 2006 Republican gubernatorial candidate Dick DeVos both publicly voiced their support for race-based affirmative action and explicitly opposed the 2006 Proposal 2. In addition, many Republican incumbents for state legislative races and both leading Republican challengers unsuccessfully seeking to unseat U.S. Democratic Senator Debbie Stabenow voiced their support for race-based affirmative action and opposition to Proposal 2.Footnote 86 Meanwhile, the Michigan Civil Rights Institute (the in-state organization established by Ward Connerly to mobilize support for Proposal 2) did not identify any major Michigan businesses, organizations, or prominent political leaders who publicly lined up in favor of Proposal 2.Footnote 87 The strategy of One United Michigan was to paint the supporters of Proposal 2 as a small faction of out-of-state extremists—led by a millionaire California businessman (namely, Ward Connerly)—who were out of touch with Michigan. While Proposal 2 won in a landslide by winning 58 percent of the votes, its organizers did so without a visible coalition.
The One United Michigan leaders believed that they could win on Election Day by framing the vote on Proposal 2 in terms of women's issues rather than racial issues. The specific strategy was to expose numerous programs for women and girls that could be ended if Proposal 2 passed. Television advertisements and leaflets raised alarms that programs to recruit elementary and middle school girls to pursue science would be banned along with breast cancer screening programs. The polling firm that contracted with One United Michigan persuaded the coalition that women were the key demographic to target, and that the way to target women would be to focus on their self-interest in preserving vulnerable women's programs.
The coalition determined that it could not avoid addressing racial issues, and this anti-Proposal 2 coalition followed the racial diversity playbook in its mobilization strategy. University presidents across the state spoke out about the importance of preserving racial diversity on their campuses. One United Michigan relied heavily on its support from major corporations located in Michigan, including the “Big Three” automobile companies. Meanwhile, One United Michigan distanced itself from the more confrontational messages from the By Any Means Necessary (BAMN) civil rights group. In addition, the coalition made sure to highlight that the conservative Republican millionaire gubernatorial candidate Dick DeVos and other top Republican leaders in the state supported affirmative action and opposed Proposal 2. By framing the anti-affirmative action side as a group of outside agitators led by a rich California businessman, One United Michigan sought to capture the populist fervor and regionalism of ordinary Michigan voters.
However, the focus on government, corporate, and higher education elites went counter to the populist angle by placing elites rather than ordinary Michigan people in the limelight. By portraying affirmative action as a diversity issue that had gained the passionate support of Michigan's leading businesses and universities, the affirmative action coalition sought to ride the new wave of diversity rather than employing the older, divisive civil rights framework. But by raising the alarm on women's issues and downplaying racial issues, the coalition may have erred by ceding rights-talk on racial issues to the colorblind cause.
What about the Republican stance in the university affirmative action cases? How, when, or whether the Bush administration would come out on the Gratz and Grutter cases wasn't clear. On the one hand, opposing the University of Michigan affirmative action policies would appease the Republican Party's conservative base. On the other hand, the Bush campaign and Republican Party in general has carefully focused on winning over increasing proportions of the rapidly expanding Hispanic population, only one third of which voted for Republican candidate George W. Bush in the 2000 election.Footnote 88
Bush ultimately chose to take a public stand against race-based affirmative action and directed then-Solicitor General Theodore Olson—the former Washington chapter president of the conservative Federalist Society,Footnote 89 who had a clear track-record of opposing race-based affirmative action—to file briefs opposing the University of Michigan Law School and undergraduate policies.Footnote 90 Indeed, Olson had successfully represented plaintiff Cheryl Hopwood in her “reverse discrimination” case against the race-conscious admissions policy at the University of Texas Law School in Hopwood v. Texas. Footnote 91 Olson explicitly argued in Hopwood that diversity is not a compelling state interest, and in its decision the Fifth Circuit Court of Appeals agreed.
However, the Bush administration's stance was instead a remarkably weak legal argument against affirmative action, and indeed was so weak that it barely deserves to be labeled an anti-affirmative action brief. Instead of calling for the Court to rule that diversity is not a compelling governmental interest, the Solicitor General's brief punted on this pivotal issue. Indeed, the brief went so far as to praise racial diversity as “an important and entirely legitimate government objective,”Footnote 92 essentially conceding that the Bush administration was not challenging the diversity rationale. This could not have been an oversight. Instead, the brief remained within the perceived “safe zone” of politics, choosing to stay within the “boundaries of legitimacy”Footnote 93 by accepting—rather than challenging—racial diversity policymaking.
Instead of calling for the Court to overturn Bakke, the landmark 1978 case upholding the constitutionality of racial preferences in university admissions as a tool to produce a racial diverse student body, the Bush administration brief explicitly conceded that, “in the end, this case requires this Court to break no new ground to conclude that respondents' race-based admissions policy is unconstitutional.” Contrast this with the plaintiff's brief, filed by the Center for Individual Rights, which explicitly argued that “… the diversity interest relied upon by the Law School is inherently unsuited to be a compelling interest.”Footnote 94 Instead of claiming that diversity is not a compelling government interest, the Bush administration brief challenged the University of Michigan Law School policy by arguing that it was in effect a quota and hence not narrowly tailored as required by the Court's equal protection jurisprudence. That is, the Bush administration's strategy was to reaffirm Bakke and instead challenge the means as not being narrowly tailored rather than challenging the ends as not being compelling.
Ward Connerly, Carl Cohen, and numerous other colorblind leaders and scholars have expressed their dismay at the administration's legal brief for its failure to centrally challenge the University of Michigan's core claim that diversity is a compelling state interest justifying its race-conscious admissions policy.Footnote 95 To this day, Ward Connerly remains furious with President Bush for taking what he calls a “Clinton-esque,” waffling, spineless stance on Gratz and Grutter. Footnote 96 The core constitutional issue at stake was whether the Court would find diversity to be a compelling state interest. The majority's holding in Grutter that diversity is a compelling state interest was a major blow. The Bush administration's failure to object to the diversity rationale was yet one more sign of the Republican Party leadership's concerted move to distance itself from the colorblind cause.
It is understandable from an electoral-incentive perspective that the Bush campaign would want to avoid news headlines that might insinuate that Bush in some way opposed or rejected racial diversity. To argue that diversity is not a compelling state interest is to risk alienating large segments of the voting public that revere racial diversity. Campaign consultants—particularly Karl Rove—have advised Bush and other Republican leaders that the future of the Republican Party depends on increasing the Party's share of the Hispanic vote. Bush and other top Republican Party leaders have shifted away from explicit race-baiting and toward a “compassionate conservative” agendaFootnote 97 that is based on a discourse of racial inclusion. It appears that the administration sought to stake out a moderate position in order to have it both ways. Regardless of the outcome of the two court cases, Bush would show his symbolic support for the anti-affirmative action views that his Republican base holds without taking the risky move of challenging the value of racial diversity.
The Supreme Court's 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1 striking down the Seattle and Louisville school districts' integration plans actually further rooted the Grutter defense of affirmative action in equal protection jurisprudence. Whereas many experts had predicted that this case would serve as the occasion for the newly-configured Roberts Court to chip away at—or explicitly ban—affirmative action by ruling that race-conscious diversity policies are never narrowly tailored or that diversity is never a compelling interest to justify such racial preferences, the conservative Court left its own 2003 Grutter ruling solidly intact. So long as the measures are narrowly tailored to achieve the compelling state interest in diversity, the Court has indicated that it plans to uphold race-based diversity measures in K-12 and higher education.
The Court objected to both of the challenged voluntary, school-assignment plans in part because the districts classified students only as white or “nonwhite” in the case of Seattle and black or “other” in the case of Jefferson County. Whereas the Court in Grutter held that race may be one of many factors taken into account in race-conscious diversity policies, in this school integration decision the Court found that race had been the sole factor that districts had considered in assigning students to their schools and explicitly relied on Gratz and Grutter to criticize the school districts for their failure to conduct an individualized review.Footnote 98 The majority opinion also objected to both districts' policies for “working backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity,” calling this “a fatal flaw under our existing precedent” in Grutter and elsewhere.Footnote 99 While the majority opinion by Chief Justice Roberts struck down both the Seattle and Louisville school integration plans, the decision did so narrowly by applying, rather than chipping away or overturning, Grutter.
The Court was very divided in this decision, as the dissenting justices accused the Court of chipping away at Brown v. Board of Education and accelerating the resegregation of public school districts. But the civil rights activists had in another sense dodged a bullet. The newly configured conservative majority on the Court could have used this decision as a launching pad to gut the Court's affirmative action rulings. Instead, the Court further reinforced Grutter, securing the constitutional foundations for race-conscious diversity policies provided that institutions adhere to the Court's directives to rely on individualized review and to avoid relying on the diversity rationale largely as a cover for “racial balancing.” Of course, only time will tell how the Court will apply its own jurisprudence in the inevitable litigation to come.
The strategic decision by supporters—in both the University of Michigan litigation and the 2006 Proposal 2 in Michigan—to eschew civil rights arguments in favor of diversity arguments has created a vacuum in “equality talk,”Footnote 100 providing colorblind entrepreneurs with the opportunity to pursue a legal strategy based on rights-based conservatism.Footnote 101 Whereas the proponents have emphasized utilitarian arguments by corporations and the military, the conservative colorblind leaders have laid claim to the civil rights legacy of Martin Luther King, Jr., and the broader civil rights movement of the 1960s. The irony is that both the pro-affirmative action civil rights activists and the colorblind civil rights activists feel marginalized from the decisionmaking on a policy that continues to be seen—by journalists, the media, and legal/political experts—as a core civil rights policy.
Conclusion
The often-predicted demise of race-based inclusion policies by the increasingly conservative federal judiciary has not yet occurred. While recent scholars commonly predict that affirmative action and other related racial inclusion policies are on the verge of extinction because of a conservative colorblind “assault on diversity,”Footnote 102 this article instead argues that such race-based affirmative action policies have rather deepened their roots in the United States as a result of the rise of racial diversity policies.
Admittedly, colorblind political entrepreneurs have succeeded in banning race-based and gender-based affirmative action via gubernatorial action in FloridaFootnote 103 and via ballot measures in California,Footnote 104 Washington State,Footnote 105 and MichiganFootnote 106—and they are planning to extend the bans to numerous additional states in the 2008 elections. Not surprisingly, the landslide colorblind victory in Michigan in 2006 has restored the momentum for organizing further ballot measures. Ward Connerly has already set the wheels in motion for anti-affirmative action ballot initiatives in 2008 in numerous states, including Colorado and Nebraska.Footnote 107 This threat is real—the ballot measure approach has been a very successful political mobilization strategy for the colorblind cause.
That said, race-conscious diversity policies are still alive and well in the vast majority of states and at the national level. Now that the U.S. Supreme Court has rejected the colorblind argument in Grutter, the critics of affirmative action have few choices besides pushing ballot measures and hoping that recent or future turnover on the Supreme Court will result in colorblind judicial victories. However, I do not mean to suggest that the judicial—or direct democracy—battle over affirmative action has ended. Given the razor-thin margin of the Grutter vote, it is conceivable that the appointments of Justice Alito and Chief Justice Roberts could yet lead to an anti-affirmative action majority on the Court. Nonetheless, I argue in this article that affirmative action has become increasingly entrenched in American policy and politics at a time when many experts had good reason to predict its extinction. And while affirmative action endures in all but a few states, the particularly version of affirmative action that is becoming entrenched bears limited resemblance to affirmative action as understood via the civil rights framework. Whereas affirmative action as properly conceived—in the form of race-based civil rights measures that are rooted in corrective justice rationales—may be in decline, it still endures. And affirmative action in its modern reincarnation, that is, in the form of a utilitarian, race-based inclusion policy that is rooted in organizations' goals of achieving diversity for their own instrumental reasons, is thus far relatively entrenched.
Not only have the justifications for affirmative action shifted from corrective justice to utilitarian diversity, but so too have the distributive outcomes of who become the recipients of affirmative action. When diversity practices are detached from policies rooted in backward-looking corrective justice rationales, organizations instead achieve the diversity they seek instrumentally in such ways that eschew civil rights foundations and instead are grounded in present- and forward-looking organizational utility.
I conclude by highlighting the numerous calls by affirmative action scholars for a renewed commitment to rights-based affirmative action. Numerous affirmative action scholars and activists have raised concerns about the detachment of civil rights roots from affirmative action, calling attention to the dangers of this transformation and propose specific reforms to reattach affirmative action to its civil rights roots. According to this approach, affirmative action must be primarily directed toward corrective justice measures to promote equality and opportunity for members of marginalized racial minorities. Many scholars who embrace this approach argue that expanding social welfare programs along the lines of the Great Society programs will be necessary in order to truly address the structural problems facing low socio-economic status African Americans, American Indians, and Hispanics (as well as low SES whites).Footnote 108 Some view affirmative action as a core policy needing to exist alongside this expansive social welfare agenda. Others view affirmative action as an important, but nonetheless peripheral, policy.Footnote 109 Regardless of its central versus peripheral nature, these scholars have developed specific, creative proposals for how to restore affirmative action's civil rights origins.
Such proponents of restoring affirmative action to a corrective justice policy have emphasized the need to limit the beneficiaries to historically marginalized groups that endured institutional or societal discrimination. Toward this end, Patterson calls for limiting affirmative action to lower- and working-class recipients from the following racial/ethnic identities: Afro Americans, Puerto Ricans, second and third generation Mexican Americans, and Chinese-Americans descended from pre-1923 immigrants.Footnote 110
Glazer, who shifted from being a leading critic to being a vocal supporter of affirmative action,Footnote 111 would limit affirmative action to African Americans. And Katznelson proposes “that affirmative action focus on antidotes to specific harms that date back to national policies in the 1930s and 1940s as remedies for the deep, even chronic dispossession that continues to afflict a large percentage of black America.”Footnote 112 In contrast to Clinton's call to “mend, not end, it,” Katznelson proposes to “extend affirmative action in order to end it within one generation.”Footnote 113 Welch and Gruhl also agree that “one possibility is to narrow the scope of federal affirmative action coverage to those groups that historically suffered substantial discrimination and continue to do so. There may already be a consensus that immigrants should not be covered by affirmative action.”Footnote 114
Katznelson calls for affirmative action to be restored to the vision articulated by Justice Powell in Bakke and President Johnson in his Howard University address. According to this logic, “affirmative action is constitutional… when the discrimination being remedied is specific, identifiable, and broadly institutional.”Footnote 115 For example, he proposes that the U.S. government identify which African Americans were excluded by design from Social Security benefits from its inception during the New Deal; then, the government could offer “one-time grants that would have to be paid into designated retirement funds” to them or their heirs. Tax credits could be extended to remedy the “absence of access to the minimum wage.” And “programs of subsidized mortgages, small business loans, and educational grants” could be developed to make up for blacks' exclusion.Footnote 116 Alternatively, Katznelson offers an administratively less burdensome proposal to extend basic health insurance, an expanded Earned Income Tax Credit, subsidized mortgages, education and training grants, small business loans, job searching and placement, and generous child care to “poor Americans who face conditions produced by the constellation of patterns of eligibility and administration the South placed inside the most important New Deal and Fair Deal programs.”Footnote 117
Renewing affirmative action in its original civil rights design has the potential to bridge some of the divide between the affirmative action and colorblind sides. The colorblind leaders converge with Katznelson's and Patterson's calls for race-based affirmative action to be tied to concrete acts of discrimination and to end within one generation.Footnote 118 In addition, it satisfies the concerns of so many citizens and leaders who are ambivalent about affirmative action because of their perception that it has become a policy of “racial balancing” that benefits privileged blacks and Hispanics who haven't suffered pervasive disadvantages or subordination at the expense of disadvantaged whites and Asians. Whether lawmakers embrace this re-visioning of affirmative action as civil rights policy remains to be seen. Regardless, commitments to racial inclusion policies remain firm for now at least, albeit for utilitarian more than egalitarian reasons.
