Diversity and Affirmative Action Everywhere but The Supreme Court

by Norman Berdichevsky (June 2010)

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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.


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).

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. I


















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.

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