Diversity and Affirmative Action Everywhere but The Supreme Court

by Norman Berdichevsky (June 2010)

For more than a generation now, one of the most powerful weapons used by the Liberal-Left in American politics is to justify differential treatment of citizens, referred to by the euphemism of “affirmative action.” The overriding consideration used to expound on the need for such differential treatment in hiring for jobs in teaching, government, and large sectors of the private sector has been the acquisition of DIVERSITY. Three times, this was the answer I received from an “insider” involved in the decision to hire someone else when explaining that, although I was indeed the most “qualified candidate” for the position (two academic teaching jobs and one as the editor of a periodical), the body involved in making the decision was under pressure to conform to government guidelines (as opposed to ” rigid quotas,” they were quick to add) regarding diversity which meant that the candidate hired (a woman and two members of “racial minorities”) would more adequately reflect the student population at a community college, a university, the readership of the periodical and/or the “commitment” to demonstrate DIVERSITY. Suffice it to say that this “desirable characteristic” of the ideal candidate was not part of the original job description.

Why? How did this issue become the touchstone of hundreds of legal cases? How is it that this holy mantra of DIVERSITY is so conspicuously absent in the debate over the nomination of Elena Kagan for Supreme Court Justice?

Affirmative action in the US began as a “tool” to redress, reduce and “eventually eliminate persisting inequalities” (of results) for African Americans in the 1960s. The term “affirmative action” has a convoluted ancestry. It can be traced to US government policy in 1961 by the executive order issued by President John F. Kennedy mandating (Order 10925) that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. At the time, this could hardly be construed as the first step on the legal road that has transformed our society from one in which our Constitution and form of government has evolved from the guarantees promised to individual citizens to one in which group identity is a guiding principle, but so it was.  

The Johnson administration adopted the policy known as “Affirmative Action” in 1965, by issuing U.S Executive order 11246, later amended by Executive order 11375 aiming “to correct the effects of past and present discrimination.” It prohibits federal contractors and subcontractors from discriminating against any employee or applicant for employment because of race, skin color, religion, gender, or national origin.

But it is not meant to refer to individuals. The order requires that contractors take affirmative action to ensure that “protected class, underutilized applicants” are to be employed when available, and that employees are to be treated without “negative discriminatory regard to their protected-class status.” What carries weight is therefore not the rights of citizens, but the rights of groups which enjoy or do not enjoy this status.

It was President Lyndon B. Johnson, the classic White Southern politician with a guilt complex, struggling to wear/inherit the cape of the great fallen leader/martyr, who turned Kennedy’s order on its head by elaborating on the importance of affirmative action in achieving true freedom for African Americans when he stated:

…But freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair…This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result…To this end equal opportunity is essential, but not enough, not enough.”

In 1971, the Supreme Court ruled unanimously that employment tests have to be job-related to ensure that “extraneous criteria” are not used intentionally or unintentionally to screen out applicants because of their race, gender or ethnicity.  We have reached a stage when the government could interfere with employment so as to regard intelligence as an “extraneous criteria”. Is it any wonder that American society has arrived at a point, where teenagers today, operate with less than half the vocabulary that they did in 1950?

A height requirement that screens out many Hispanics and women,  even if it can be demonstrated that height is an important job related consideration, may be held to be invalid today. The laws relating to affirmative action currently state that if a test for merit disproportionately eliminates one racial or gender group and some equally good merit test does not, then the employer has to use the latter test. The door is thus open to endless variations of “equally good merit tests” (until you find the one that works).
 
Universities, hospitals, government agencies, fire and police forces were deemed to be in need of justifying that their racial, ethnic or gender make-up reflected the composition of the populations they served. The most recent case of using affirmative action tested by the Supreme Court involved the New Haven Fire Department in Connecticut that gave an exam for promotions to lieutenant and captain. Scores for Hispanics and for African-Americans ranged from 34 to 59 percent of the scores for whites. As a result, no African-American and “only one Hispanic” had won any of the 15 promotions. The question then became whether the Civil Service Board would validate the test results.
 
After five days of hearings, the board decided the exam was flawed. “The measured thing to do was to decide not to promote based on that exam,” according to the then Acting Corporation Counsel Victor Bolden. Karen Torre, the lawyer for the whites and one Hispanic firefighter, stated that her clients had been the victims of reverse racial discrimination, pure and simple. “There’s no question that their race and skin color were the driving motivation behind the decision not to promote them,” and her claim was upheld by the U.S. Supreme Court in a 5-4 decision. Frank Ricci, the lead plaintiff in this case, was not a naturally gifted test taker. As someone with a clear disability, he could have taken a stand with those who opposed a qualifying test for promotion. Nevertheless, in an affidavit, he stated that in spite of his dyslexia, he studied as much as 13 hours a day for the firefighter promotional exam, that he paid someone to read the textbooks onto audiotapes, prepared flashcards and worked with a study group, and thus he passed in spite of mutiple handicaps and as a result of extra individual effort. In effect, the board concluded Ricci was wrong to have made any extra effort to pass the test.
 
The most recently appointed Justice, Sonia Sotomayor, and the current candidate, Elena Kagan, would undoubtedly have voted and will certainly vote with the minority of four judges who wished to invalidate the exam and reject the promotion of the firefighters in any similar future case involving “affirmative action.” The government’s policies and actions since 1964, primarily in Democratic administrations have been in the direction of promoting “groups’ rights.” The absurd requirement demanding that individuals fill out the census forms to indicate their group racial and ethnic identity serves no other purposes than to document which group deserves more protection and “equality.” This has the unintended consequence of often promoting racial discrimination. Although realtors are forbidden by law to inform prospective buyers of a home anything about the racial makeup of the neighborhood where the house is located, the buyers can simply go online and look up the racial composition of each area based on the most recent census data (and avoid buying where they don’t like the profile). 

What makes the present appointment of nominee Kagan all the more grotesque is that the principle of DIVERSITY is so absent in appointing her to a Supreme Court which will not have a single member “representing” the WASP (White Anglo-Saxon Protestant) group, no longer a majority, but still the largest single identifiable ethnic or religious component of the American population. In fact, there is no Protestant of any ethnic origin, or denomination, neither Fundamentalist, Evangelical or Mainline.  If admitted, Kagan would replace Justice Stevens (born in Chicago) and join her mirror image counterpart on the court, Ruth Bader Ginsburg, another white Jewish ultra-liberal female from New York City. Since Kagan grew up in Manhattan and Ginsburg is from Brooklyn, and Sotomayor comes from the Bronx, “diversity” under Obama should dictate  finding the next candidate in Queens.  A new Supreme Cort with Kagan would have a composition that is 33% women and 55% Greater New York-New Jersey (Justices Scalia and Alio were both born in Trenton).

















If we were still a nation of individual citizens with equal rights and opportunities and with merit the only consideration for appointment to high office, none of the above would matter, but it is the selective use of DIVERSITY, like so much else, that is part of the Obama/Left/Liberal agenda that stands out for its hypocrisy. Ironically, the leading Ivy League schools who today push the Liberal/Left agenda in the country, used “geographical diversity” as a subtrefuge in the 1930s to severely limit the admission of Jewish students.
 
 

There is indeed one and only one good argument for “diversity”, built into our Consitution, and that is the Electoral College, designed to prevent manipulation of specific blocks of voters in large states and afford representation to the small states and rural areas. From the very beginning, it wisely prescribed the limitation that Electors must cast at least one ballot for an individual who “shall not be an inhabitant of the same state with themselves”. This makes it virtually certain that the President and Vice-Presidential candidtes will always be from different states (and preferably from different regions to win the widest support nationally). 

Obama’s list of nominations wholly ignores this kind of diversity and is pandering to three large blocks of minority voters that gave him huge majorities, Jews, Blacks and Latinos. It is equally galling that his frequently stated objective to nominate justices “who are in touch with ordinary Americans” (justification used in the selection of Sonia Sotomayor) has resulted the choice of Elena Kagan, who attended a prep school, Oxford and elite Ivy League Colleges Princeton and Harvard (like Obama) and was an adviser to Goldman Sachs (second largest contributor to Obama’s campaign;Harvard was third).

Does any real sports fan object to the fact that an overwhelming percentage of professional players in the NBA are African-American?; or that so few are professional ice hockey players in the NHL? Undoubtedly there are some but they are rightly regarded as cranks. Nevertheless, only a few days ago, there were expressions of regret on the “This Week in Baseball” television program that African-Americans, who represent roughly only 13% of the general population, “used to constitute more than 25% of professional baseball players in the major leagues but now account for only 14%.” We will never escape this colossal waste of time until we return to the premise that only individuals, not groups, deserve rights and must be judged on their individual merit.

Chief Justice John Roberts has rightly expressed his firm opposition to the “whole sordid business” of dividing the American population by race and ethnicity but the prospects are dim that we can escape the fate of all of us being forced into statistical boxes. My wife was born in Argentina and her first language is Spanish. Does she qualify as a Hispanic? Her parents were Yiddish speaking Jews who immigrated to Argentina in 1920. When she asked an official at the American Embassy if she should identify herself on a form to get a green card as Hispanic, his reply was – “I haven’t got a clue.”

As I write these lines (May 12), the first page of a local newspaper, The Orlando Sentinel, features a story on page one entitled “Hispanic License Plate Could Sail to Approval.” A Hispanic Achievers plate design has been incorporated into a bill submitted to Governor Crist. The original design simply stated “Hispanics Discovered Florida” but the public relations team behind the proposal had to tone down the message to simply put the organization’s name on the design Hispanic Achievers with a Spanish galleon in the center and the word UNIDOS in large print. Profits from the $25 tag fee would go to fund the group’s “administrative costs” and benefit a fund to aid Hispanic achievers. The group claims a network of 14,000 subscribers, a drop in the bucket of the state’s more than three and a half million Hispanics.

Of course, the absurd irony that no one bothers to pay attention to, is that the same mentality of group pride and a balkanized identity of hyphenated-Americans originally led most politicians on both the state and local level to go along with cancelling “Columbus Day” to satisfy American Indian groups angry at the Spanish “discovery and conquest of the Americas” as racial genocide. Columbus Day was originally declared a federal holiday back in 1934 as an act by the Roosevelt administration to help assuage the feelings of many American Catholics, organized by the Knights of Columbus, especially of Italian origin (who claim Columbus as their own), that there was no national holiday that recognized an achievement by Catholics (and Italians). We have come full circle.
 
Our national motto “E Pluribus Unum” is out of date (as most certainly is “In God We Trust”). The reality of the last two generations of affirmative action policies could be summarized by what Aristotle said more than 2,300 years ago …. “The worst form of inequality is to try and make unequal things equal.”

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Norman Berdichevsky contributes regularly to The Iconoclast, our Community Blog. Click here to see all his contributions, on which comments are welcome.