On Tuesday, Michigan will vote on the Michigan Civil Rights Initiative (MCRI)--a proposal that would end affirmative action in public education, employment and contracting. Grave misconceptions about the meaning of affirmative action fuel the opposition. 

Affirmative-action foes now lead in the polls 49 percent to 41 percent with 10 percent undecided, according to a Detroit News/WXYZ-TV poll of 600 likely voters.

What affirmative action and equal opportunity mean today

When former Supreme Court Justice Sandra Day O'Connor cast a swing vote in favor of affirmative action at the University of Michigan Law School in 2003, she sent a distinct message to America with respect to civil-rights legislation: Context matters.

"The law can't be read devoid of current social and historical conditions; it has to be done thoughtfully and pragmatically," said Jonathan Alger, lead counsel in the two University of Michigan affirmative-action cases, and now vice president and general counsel of Rutgers University in New Jersey. "In democracy, access to opportunity must be real and there must be access at every level."

Affirmative action and equal-employment opportunity (EEO) are legislative means of improving access. The first requires companies to take positive steps to increase representation of women and people of color internally, and the latter requires they not discriminate on the basis of race, sex, religion, disability or national origin in employment practices. Both were implemented to level the playing field, an objective that has not yet been attained.

 

The History of Affirmative Action and Equal-Employment Opportunity

· Compensatory Peferential Treatment. In 1962, Congress of Racial Equity founder James Farmer proposed race-based preference systems to then President Lyndon B. Johnson to promote equality for blacks. Johnson renamed the program "affirmative action" in a 1965 speech at Howard University. This was a reaction to the established meritocracy and a way to foster academic and social capability among children whose parents did not have the means to facilitate development. Later, Johnson enacted Executive Order 11375, which required federal contractors to use affirmative action to increase representation of traditionally underrepresented groups in federal employment. ·  The Civil Rights Act of 1964. Former President John F. Kennedy first mentioned the bill in his 1963 civil-rights speech. A year later, it was introduced to Congress by Senate Majority Leader Mike Mansfield, with the intent to "create the equality of treatment which we would want for ourselves." The legislation outlawed discrimination in the United States on the basis of race, ethnicity, religion, gender or national origin. Title VII of the Civil Rights Act was recently amended to prohibit employer retaliation against employees who file discrimination claims.

"There's inequality across the board, still," said Alger. "It's certainly true in higher education in undergraduate and at the graduate level, but it's very true in K-12 education, criminal justice, education, healthcare, housing and virtually every aspect of the nation and economy. Context matters; that's the key message."

"As we face 21st-century demographics and a global economy, the need for the diverse work force is enhanced," added Sheldon E. Steinbach, vice president and general counsel of the American Council on Education. "But there's strict scrutiny. It takes a tremendous amount of political will and follow-through to make these things work because the forces of resistance are incredible."

Campaign to end affirmative action

The anti-affirmative-action campaign, spearheaded by Californian Ward Connerly, has been evolving since Lyndon B. Johnson first signed the legislation more than 40 years ago. Buttressed by unfavorable court decisions and financed by some of the nation's most powerful conservative individuals, this is not a threat to be taken lightly.

In the opening chapter of his book The Assault on Diversity, Lee Cokorinos, research director at the Institute for Democracy Studies in New York, writes, "Now rich in experience and in allies, including corporate backers and friends at the highest levels of government, theirs is a backlash whose time, they believe, has finally come."

Consider the networking. The Federal Society for Law and Public Policy reports directly to the Office of White House Counsel and the U.S. Department of Justice. William Bradford Reynolds is a trustee of its civil-rights practice group, and Reynolds has direct ties to the three largest anti-affirmative-action organizations in the country: the Center for Equal Opportunity, the Center for Individual Rights, and the Institute for Justice.

Clint Bolick, cofounder of the Institute for Justice, pushed for the nomination of Clarence Thomas, one of the two justices who specifically said diversity was not a compelling interest in the University of Michigan cases. Justice Antonio Scalia was the other. Bolick also wrote The Affirmative Action Fraud, which Cokorinos, who has conducted research on political movements in the United States and Africa for 20 years, calls "the most important book directly attacking the subject." (See also: Who Is Paying to End Affirmative Action?)

It will take a great deal of effort to overcome such opponents. For example, "The educational bureaucracy is entrenched and they'll just simply hunker down and say 'all right, we've survived worse than this so he'll be gone or she'll be gone and we'll still be here,'" said Steinbach. "You have to break a lot of crockery."

"Particularly frustrating is that opponents of affirmative action and EEO have turned the language of the civil-rights movement on its head," added Alger. "But the vast majority of cases filed with the Equal Employment Opportunity Commission (EEOC) continue to involve discrimination against historically underrepresented groups."

Why we still need affirmative action

Affirmative action means as much today as ever, believes EEOC Commissioner Christine Griffin.

"Enough of us need to start saying that there was an important reason for affirmative action, and guess what? It still exists," said Griffin. "When did we look around and see it was equal? That's just not true."

Linda Forte, senior vice president of Comerica Bank, No. 12 in The 2006 DiversityInc Top 50 Companies for Diversity, agrees.

"Sometimes I step back and focus on why affirmative action is so important," said Forte. "It continues to be the right thing to do. There's still a need to correct what has happened as a result of history and to level the playing field. We have moved, but we're not there yet." 

"I bristle when someone says diversity is code for affirmative action," added Griffin. "They're both very important. We have to understand that the differences that separate us are probably small compared with what's common between us." 

The distinction between affirmative action/EEO and diversity is a necessary one. The first are government-initiated programs to solve systemic problems, foster assimilation and react to historic discrimination. Diversity is a proactive approach to management that capitalizes on both internal and external measures to advance opportunity, develop talent and optimize productivity.

"Diversity and excellence go hand in hand," said Alger. "When it's done right and when these programs work well, everybody benefits, including members of majority groups. One of the strategies is to divide and conquer, pitting one group against the other. We have to recognize that we're all in this together."

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