PORTLAND – Imagine that you’re in the position of having to lay off a teacher. You have two who hold the same position, one white and one black.

Or imagine that you are a city councilor and have just learned the results of a promotional test for firefighters. White firefighters and one Hispanic passed the test with a high enough score to be promoted, but no African-Americans. Your city is a majority-minority city with 42 percent of the population white.

Imagine that you are trying to encourage more minority-owned federal contractors. The federal government provides a bonus to contractors who hire minority subcontractors. A white contractor who regularly puts in the low bid sues for discrimination.

Finally, imagine that you are a university admissions officer and you establish a plan to actively seek to create a diverse student body. You use race as one aspect of admission if students don’t fit in the automatic acceptance pile. You know that the Supreme Court as far back as 1978 — in Regents of the University of California v. Bakke — ruled that race could be considered a plus. That is the case decided last month in Fisher v. University of Texas at Austin.

They all relate directly or indirectly to affirmative action. Confusing? You bet.

The Supreme Court has not really helped.

In the cases mentioned above, the court has never had a unanimous or even close to unanimous decision. In Fisher v. Texas, an affirmative action case was settled for the first time with a near-unanimous decision of 7-1, but, in fact, it wasn’t decided at all because the Supreme Court sent it back to a lower court.

Affirmative action is really an outgrowth of President Johnson’s desire to diminish the effects of discrimination in employment.

One of the first things he did after becoming president was call on Martin Luther King Jr. The Civil Rights Act of 1964 was passed. It prohibits discrimination in most aspects of our lives, from employment to education to public accommodation.

But President Johnson thought that prohibiting discrimination was not going to be enough, that positive action needed to be taken to create equal opportunity and reduce the effects of historical, societal affirmative action.

He signed an executive order that applied to federal agencies and federal contractors. If they employ fewer minorities and women than would be expected given the number of qualified minorities and women available, they must establish a plan to actively recruit members of these groups.

This practice is often referred to as “reverse discrimination” or a “quota,” although the courts have specifically disapproved of any racial classification except where there is a governmental interest, and all are subject to strict scrutiny.

Because this policy was put in place through an executive order, a U.S. president, whether Republican or Democratic, could rescind it at any time. University affirmative action plans in admissions are based on federal regulations, not laws, and could be revised through an administrative process at any time.

The state of Maine has an affirmative action law relating to state agencies and state contractors. It also includes actively seeking out those qualified who have disabilities. In both the federal case and in Maine, affirmative action doesn’t apply to the average employer — only to those with sufficiently large contracts with the state or the federal government.

What we struggle with most with affirmative action is the perception of reverse discrimination. But consider again the first case: You have two qualified teachers, one black and one white.

What would you do? If you lay off the white teacher because of her race, you have discriminated against her in employment based upon her race, in violation of the Civil Rights Act of 1964, and you have violated her equal protection rights under the 14th Amendment. If you lay off the black teacher, you do the same.

Universities have voluntarily set up affirmative action plans to actively recruit minorities, as have employers. A few states have eliminated affirmative action at the state level: California, Washington, Florida, Oklahoma, New Hampshire, Arizona and Nebraska. Given the Supreme Court’s inability to guide us, I suspect that more states will follow.

Carolyn Ball teaches human resources and is an associate professor of public policy and management at the Muskie School of Public Service on the University of Southern Maine’s Portland campus.

 

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