Controversies in Affirmative Action This page intentionally left blank Controversies in Affi rmative Action Volume 1: Historical Dimensions James A. Beckman, Editor Copyright 2014 by James A. Beckman All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, except for the inclusion of brief quotations in a review, without prior permission in writing from the publisher. Library of Congress Cataloging-in-Publication Data Controversies in affi rmative action / James A. Beckman, editor. volumes ; cm Includes index. ISBN 978-1-4408-0082-5 (hardcopy : alk. paper) — ISBN 978-1-4408-0083-2 (ebook) 1. Affi rmative action programs—Law and legislation—United States. 2. Affi rmative action programs—United States. I. Beckman, James A., e ditor of compilation. KF4755.5.C67 2014 344.7301'133—dc23 2013050405 ISBN: 978-1-4408-0082-5 EISBN: 978-1-4408-0083-2 18 17 16 15 14 1 2 3 4 5 This book is also available on the World Wide Web as an eBook. Visit www.abc-clio.com for details. Praeger An Imprint of ABC-CLIO, LLC ABC-CLIO, LLC 130 Cremona Drive, P.O. Box 1911 Santa Barbara, California 93116-1911 This book is printed on acid-free paper Manufactured in the United States of America Contents Preface vii Acknowledgments xiii Introduction xv Chronology of Major Events Impacting Affirmative Action xxxv Volume 1. Historical Dimensions Chapter One: The Supreme Court, Civil Rights, and Affirmative Action: An Historical Perspective 1 Gregory B. Padgett Chapter Two: Modern Affirmative Action Takes Shape: President Lyndon Johnson, Howard University, and Executive Order 11246 17 F. Erik Brooks Chapter Three: A Forgotten Story of Affirmative Action and an Unlikely Ally: President Nixon, the Philadelphia Plan, and the Evolution of Modern Affirmative Action 37 Tom Lansford Chapter Four: A Reader’s Overview of Affirmative Action, Constitutional Law, and the Political Process 55 William A. Schroeder vi Contents Chapter Five: The Final Arbiter: Supreme Court Jurisprudence and the Trend toward Conservatism in Affirmative Action in America 113 David E. Fitzkee Chapter Six: The Biggest Threat to Affirmative Action in Its Formative Stage: President Ronald Reagan and His Attack on Affirmative Action in America 143 Maya Beasley Chapter Seven: Closing the Gap: Affirmative Action in Higher Education, the Utilization of the Diversity Rationale, and Select Examples of Legal Challenges between 1995 and 2002 159 Adalberto Aguirre Jr. and Rubén O. Martinez Chapter Eight: Hurricane Hopwood: The Hopwood v. Texas Revolution and the Chaotic and Inconsistent Application of Affirmative Action in Higher Education, 1996–2003 179 Christopher “Chad” Cronon Chapter Nine: Supreme Court Guidance on Affirmative Action from 2003 through 2013: An Analysis of the Implications Arising from Gratz v. Bollinger (2003), Grutter v. Bollinger (2003), Parents Involved in Community Schools v. Seattle School District No. 1 (2007), and Fisher v. University of Texas at Austin (2013) 201 Leslie Y. Garfield Chapter Ten: The Role of the Executive Branch and Views of Various Presidents on Affirmative Action from Roosevelt to Obama 225 Robert H. Wood About the Editor and Contributors 253 Index 259 Preface It has been 11 years since the landmark Supreme Court decision in Grut- ter v. Bollinger in 2003, wherein the Supreme Court in part intimated that race-based affirmative action might not be necessary or needed in 25 years (i.e., 2028). Of much less importance and significance, but nevertheless germane to the motivation behind this project, it has also been 10 years since the release of Affirmative Action: An Encyclopedia1 in 2004. Given that the Supreme Court has ruled in two major cases since that time (Fisher v. University of Texas in June 2013 and Schuette v. Coalition to Defend Affirma- tive Action by Any Means Necessary in April 2014) and that only a decade and a half remain on the Court’s 25-year countdown, an update to current status and scholarship relating to affirmative action was much desired and is arguably needed. Since that time, Americans have been witness to some unparalleled signs of improvement in terms of opportunity, with a myriad of minorities breaking through the “glass ceiling” into the upper echelon of politics. These pathfinders included the election (and reelection) of Presi- dent Barack Obama as the first black president of the United States, which some have claimed would usher in a “post-racial” era in America. There have also been successive black secretaries of state (Colin Powell and Con- doleezza Rice), multiple female secretaries of state (Condoleezza Rice, Hillary Clinton), the first black attorney general of the United States (Eric Holder), the first Hispanic supreme court justice (Sonia Sotomayor), and a host of other impressive political accomplishments.2 Yet, as pointed out by numerous chapters in this work, minorities still face serious and persistent obstacles and challenges in modern society. Minorities (particularly black Americans) are still notoriously underrepresented on college and university campuses across the country. A June 2013 report issued by the Lumina Foun- dation reported that while 59.1 percent of Asian adults and 43.3 percent of white adults have a college diploma, only 27.1 percent of black adults and 19.3 percent of Hispanic adults have a college diploma.3 The disparity viii Preface between white and black household incomes also continues to widen. Fur- ther, incarceration rates in the United States are heavily concentrated by race and ethnicity, and a disproportionate number of black Americans are incarcerated in America. For instance, a February 2008 report by the Pew Center reported that 1 out of every 9 black males between the ages of 20 and 34 are behind bars, and 1 out of every 15 black individuals 18 or older are incarcerated, compared with 1 out of 36 Hispanic males over the age of 18, and compared with 1 out of every 106 white males above the age of 18.4 Yet, conversely, the number of individuals believing that racial discrimina- tion is the biggest or primary impediment to black opportunity and equality has fallen sharply, from 37 percent believing that racial discrimination still serves as the chief obstacle to equality in 1995, down to 23 percent by 2012.5 Additionally, the Supreme Court that approved of the continued use of affir- mative action in higher education (and that diversity was a compelling gov- ernmental interest worthy of pursuit) has changed drastically in terms of its composition. More specifically, as of 2013, four of the nine justices (44% of Court) have left the Court since 2003, including the author of the Grutter opinion (Sandra Day O’Connor), the author of the Gratz opinion (William Rehnquist), and three of the five justices who approved of affirmative action in Grutter (O’Connor, David Souter, and John Paul Stevens). Further, despite the implicit representations of Supreme Court Justice O’Connor in 2003 in Grutter that affirmative action would no longer be needed (or at least permit- ted) by 2028, Americans remain hopelessly divided as to the continued need and legality of affirmative action in 21st-century America. If the end point of affirmative action (as a matter of federal constitutional law) is indeed 2028, then only 15 years remain. Additionally, a number of states (eight states by the end of 2013) have banned affirmative action as a matter of state law, including several very populated states such as California, Michigan, and Florida. In fact, 25 percent of the high school age population in 2013 lived in one of these eight states. Unless the Supreme Court declares such state law bans to be unconstitutional, it is likely that more and more states will fall subject to these state law bans in future years. Thus, the future for affirmative action in the next 15 years is not at all certain. Thus, the purpose of this book is to build on where Affirmative Action: An Encyclopedia left off in 2004, and to provide an analysis of the continued practice of affirmative action in America, through the latest Supreme Court pronouncement on the practice in Fisher v. University of Texas at Austin (decided in June 2013). Broadly speaking, the goal of this work is to provide readers with the current cross-discipline perspective on the role of affirma- tive action in society, and its prognosis for the next decade in America. The reader can explore the philosophical and sociological theories involving affirmative action, the multiple federal laws and cases involving the legality Preface ix of affirmative action, how affirmative action has been implemented over time (correctly or incorrectly, according to the Supreme Court), and its less than rosy prognosis. Throughout the course of the book, the reader can fol- low the twists and turns of affirmative action throughout the decades, the host of major and minor issues, subplots, and the various knotty divisive parts. While the debate on affirmative action has resulted in a byzantine maze of scholarly articles and books, reports, studies, popular writings, judicial cases, and executive orders, among other diffuse sources, the goal of the editor of this book is to lay out the substance, fundamentals, context, and history of affirmative action in a logical and structured format. A few words are in order regarding the structure of this book. First, each chapter is authored by a different scholar and an expert in his or her area. The authors come from a variety of different academic disciplines, including law, political science, history, sociology, women’s studies, African American stud- ies, and philosophy. Contributing authors were drawn from many leading institutions of higher learning throughout the United States, which include Eckerd College, Western Illinois University, University of Southern Missis- sippi, University of California, University of Connecticut, Southern Illinois University, United States Air Force Academy, Pace University, University of Michigan, The Ohio State University, Lenoir-Ryne University, Middle Geor- gia State College, Quinnipiac University, University of Arkansas, George- town University, University of Miami, Texas Southern University, Widener University, Valparaiso University, University of Tampa, University of Central Florida, Azusa Pacific University, Bryant University, Mercer University, Ship- pensburg University, and the University of Louisville. Contributing authors (like composition of the population of the United States itself ) represent a mosaic of different races and ethnicities; this diversity among the authors lends itself in part to a diversity of viewpoints on the efficacy and legitimacy of the contentious practice of affirmative action. The authors contributing to this work are also equally represented by gender (18 authors are male; 18 authors are female). Brief biographies available on each of the contributing authors may be found in the “About the Editor and Contributors” section at the end of each corresponding volume where the essay appears. The book is divided up into three distinct parts. Volume 1 provides the historical context and framework for the creation and evolution and cur- rent status of affirmative action today, with particular emphasis on tracing the history of affirmative action over the course of the last four decades. Within Volume 1, the following topics are discussed: the broad history and context for affirmative action from the close of the American Civil War through the Civil Rights Movement in the 1950s and 1960s (Chap ter 1); the genesis of modern affirmative action notions through President John- son’s famous 1965 Howard University speech and Johnson’s Executive