Strategic equality and the failure of affirmative action law
| Published date | 01 March 2012 |
| DOI | 10.1177/1358229112453890 |
| Date | 01 March 2012 |
| Author | Major G. Coleman |
| Subject Matter | Articles |
Article
Strategic equality
and the failure of
affirmative action law
Major G. Coleman
Abstract
The changing standards used by the federal courts to adjudicate affirmative action in
employment and post-secondary education, driven more by changes in personnel than
by any real cultural or societal shifts, now pose a threat to US democracy. The case
of Fisher v. University of Texas, recently granted review, opens anew the 2003 Supreme
Court ruling that universities may consider race for the purpose of achieving diversity,
if that diversity satisfies the strict scrutiny standard requiring a compelling governmental
interest in programs narrowly tailored to meet whatever government interest may be
involved. The real question should, of course, center on whether the diversity standard
adequately meets the political and economic demands the USA seems certain to face in
the coming century, as people of color move from minority to majority status. Drawing
upon data from the General Social Survey, the Current Population Survey, and the
National Center for Education Statistics, I contend here that diversity alone is inadequate
because it is non-remedial and leaves in place both white privilege and Black, Latino,
Asian, and Native American disadvantage.
Keywords
Affirmative action, Racial Equality, Diversity, Blacks, Employment, Civil Rights
Introduction
‘‘Strategic equality’’ is the amount of substantive equality necessary to avoid a crisis.
America currently stands at a racial crossroads. In less than 60 years, most of the nation
State University of New York, New Paltz, NY, USA
Corresponding author:
Major G. Coleman, 1 Hawk Drive, New Paltz, NY 12561, USA
Email: colemanm@newpaltz.edu
International Journalof
Discrimination and theLaw
12(1) 27–51
ªThe Author(s) 2012
Reprints and permission:
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DOI: 10.1177/1358229112453890
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will be non-white. By 2070, America will be 46.8%white, 28.5%Latino (any race),
14.9%Black, 11.1%Asian, and 1.1%Native American.
1
The problem is that, although
whites constitute a numerical minority, they will continue to hold positions of economic
and political dominance. This power imbalance, based solely on race, threatens our
democracy at least to some degree.
2
With most voters, workers, and soldiers being
non-white, any significant amount of substantive inequality based on race could invite
the emergence of a racialized republic. Meanwhile, the traditional means of measuring
racial equality in absolute and relative terms will no longer be tolerable.
The real failure of affirmative action, particularly in the federal courts, has been, first,
the courts’ inability to maintain a single standard of review for any reliable length of time
and, second, the substitution of diversity for the real remedial programs needed for a
nation less than five decades removed from a Jim Crow system of racial caste.
Imagine a case of specific, intentional discrimination against Black workers. Suppose
that a company with 100 employees had been doing business for nearly 40 years in an
area that was 25%Black and had never hired one Black person even though qualified
Blacks had applied. Suppose further that the employer was sued for discrimination and
the judgment fell against the employer.
3
The courts need to decide how to fashion a solu-
tion to this situation that involves a remedy for the inequality created by the employer’s
racial discrimination.
In this hypothetical situation diversity is irrelevant. This is a case that calls for an
equality remedy. The Civil Rights Act of 1964 (codified as 42 USC § 2000e-2) prohibits
official discrimination on the basis of race, color, religion or gender, and it makes it an
unlawful employment practice
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of employ-
ment, because of such individual’s race, color, religion, sex, or national origin.
The enforcement provisions of the Civil Rights Act of 1964 (42 USCS § 2000e-5(g)
(1)) mandate that, if a business is found to discriminate against people in violation of the
act, a court may order ‘‘affirmative action.’’ This affirmative action may include rein-
statement or hiring of employees, with or without back pay (payable by the employer,
employment agency, or labor organization, whoever may be responsible for the unlawful
employment practice), or any other equitable relief as the court may deem appropriate.
After 40 years of racial discrimination it would not be fair to Blacks, or to whites, to
allow the employer to ‘‘diversify’’ its workforce by hiring 10 Black workers to create a
critical mass of Blacks who could interact with each other and teach the Black commu-
nity more about the company. If these Black workers taught the white workers and man-
agers and helped them learn more about Black culture and Black work habits, and ideally
one day make the world a better place by creating more of a sense of community (typical
goalsfor diversity), this wouldnot remedy 40 years of racialbigotry and violationof the law.
Making the worlda better place may be the purposeof diversity, but the law saysit is not a
sufficient remedy for Blacks who have been discriminated against. Diversity in this
hypotheticalsituation aidsthe employer and white workersmore than the workers who were
harmed, because diversity allows them to keep the ill-gotten gains from discrimination.
28 International Journal of Discrimination and the Law 12(1)
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