The civil rights movement of the 1950s and 60s made great strides in ensuring that all American citizens are protected equally under the law, regardless of race, religion or ethnicity. The landmark Civil Right Act of 1964 outlawed racial discrimination in jobs, education, housing and public accommodations, and the Voting Rights Act a year later ensured suffrage for African-Americans. The Supreme Court in its Loving v. Virginia decision in 1967 ruled that legal bans on interracial marriage were unconstitutional. Hundreds of thousands of Americans — from all races and religions — marched in protests against segregation, and it seemed that the landscape was changing for racial tolerance.
However, it quickly became apparent that many Americans were unwilling to adapt. Deeply entrenched racist attitudes remained in place throughout the nation. Though racial discrimination was formally banned, tolerance was difficult to enforce in practice. Employers and real estate brokers found excuses to keep blacks out despite the legal ban. It was during this period, too, that attention began to be focused on gender discrimination. Despite years of efforts on that front, women still earn approximately 77¢ to every dollar made by their male counterparts, according to a study by the Institute for Women’s Policy Research.
Persistent poverty among blacks further impeded progress. With neighborhoods typically segregated by income level, and public schools largely funded at the local level, lower income areas are usually served by poorly funded schools. In 2011, nearly a half-century after the federal ban on hiring discrimination, 35% of the black population (12.8 million people) and 33% of Hispanics (17.1 million) were living in poverty, compared to an overall national rate of 15.1%. Living in low-income neighborhoods and consigned to poor schools, a substantial proportion of black and Hispanic students have been inadequately prepared for college, and consequently, a high-paying career, perpetuating the cycle of poverty and racial inequality two generations after Congress resolved to end it.
Affirmative action was the name given to a program first instituted by President John F. Kennedy in March 1961, which required government employers to take extra measures – that is, affirmative action – to ensure the diversity of their workforce and equal treatment of all employees, “without regard to their race, creed, color, or national origin.” The principle was expanded in the Civil Rights Act of 1964 and in a similar measure signed by President Johnson later that year. The intention was to enforce integration through legal action and thus create a more equal nation. The 1954 U.S. Supreme Court decision in Brown v. Board of Education, outlawing so-called legalized racial segregation in public schools, had begun the process of school integration in the South, where segregation was a legally imposed system. The new civil rights policies created by Congress and the high court created an expectation that the educational system would become diversified and blacks could begin to escape their separate-but-unequal ghettos. Affirmative action was meant to end the informal practices and social conditions that prevented equality from happening.
As affirmative action policies became institutionalized in the Johnson and Nixon administrations in the late 1960s and early 1970s, they began to meet fierce resistance. Initially it came from lower- and middle-class whites who feared being displaced or simply were reluctant to associate with blacks. Beginning in the 1970s, conservative intellectuals began developing sophisticated legal tactics to oppose affirmative action in courts. Initial arguments simply turned the logic of civil rights on its head, arguing that favoring individuals based on their race violated the principle of equal protection for which the civil rights movement had fought — even when the intent was to overcome past discrimination and advance historic victims to equal status.
These arguments found one of their most credible platforms in Commentary, the monthly intellectual journal published by the American Jewish Committee and edited by Norman Podhoretz. Among Podhoretz’s claims was that while Jews had long been allies of the black community in the struggle to end discrimination, they should draw the line at affirmative action because it replaced one form of discrimination — against blacks — with another, against whites. Despite their longtime alliance with the black community in the struggle for civil rights, Podhoretz argued, Jews should oppose affirmative action.
He further argued that if policies were adopted to deliberately increase the presence of blacks, particularly in higher education, so that it might begin to approach their proportion in the general population, it would inevitably reduce the presence of Jews until they were restricted to percentages matching their tiny share of the population. In effect, this would reinstitute the discriminatory admissions quotas that had been rampant in colleges in the early 20th century, until civil rights laws outlawed religious quotas.
By 1972 the question of affirmative action was causing furious debates within and among the major Jewish civil rights organizations, with the conservative Anti-Defamation League calling for open opposition, the liberal Reform movement urging continued support and other groups somewhere in between. That spring the topic was brought to the annual meeting of the National Community Relations Advisory Council (later renamed the Jewish Council for Public Affairs), which coordinates the work of the main national and local Jewish public-policy organizations. In the end a compromise policy was adopted in which the organizations agreed to support non-binding efforts to recruit blacks but oppose any numerical quotas or guidelines.
The new policy was put a test the next year when the case of DeFunis v. Odegaard was brought to the Supreme Court. Marco DeFunis was a white Seattle resident who sued the University of Washington in 1971 after being denied admission to law school. He charged that he was the victim of racial discrimination because he was rejected in favor of black applications whose qualifications were lower than his. Defeated before the Washington state supreme court in 1972, he appealed to the U.S. Supreme Court, which heard initial arguments in the fall of 1973.
The filing of amicus curiae briefs in advance of the hearing caused an explosion. Every major Jewish organization involved in public policy filed a brief in favor of DeFunis. Every major black organization filed a brief against him. Jewish organization leaders claimed years later that they did not expect the clash of interests between the two long allied communities to become a flashpoint. Black leaders, activists and intellectuals, however, continue 40 years later to describe their shock at what looked to them like abandonment or betrayal by their community’s closest ally. Black spokespersons were particularly bitter about the fact that DeFunis was a Sephardic Jew, which was interpreted to mean that Jewish self-interest had trumped commitment to principle. Jewish leaders insisted they had no idea at the time that he was Jewish.
The court decided in the end not to accept DeFunis’ appeal. The issue came up again, even more dramatically, in the 1977 case of Regents of the University of California v. Bakke, involving a white (non-Jewish) medical school applicant, Allan Bakke who was denied admission in accordance with affirmative action policies. This time the court ruled in Bakke’s favor. The decision upheld the right of universities to consider race in admissions, but only as one of several factors between otherwise equal candidates.
The Jewish-black confrontation over DeFunis repeated itself in Bakke, and helped spark a break in relations that lasted nearly a decade, until leaders of both communities reached out to each other in 1984 in the face of conservative Reagan administration policies that alarmed both sides. Cooperation between them has continued warily since then, never regaining the warmth that it had enjoyed before DeFunis.
Many today, especially on the right, argue that affirmative action is archaic and unnecessary in a post-civil rights era, especially after the 2008 election of President Barack Obama, the first African-American to fill the nation’s highest office. Others disagree, stating that for as long as racism persists as a social disease, extra measures must be taken to ensure that employment and admissions processes are not racially discriminatory. Yet another camp has suggested that the problem is not inequality of race, but rather of class, and that focus should be turned to those of all races living in poverty.
Continuing the legacy of Bakke, ace is not the only factor that can be taken into account when it comes to affirmative action. Adapting the policy to include gender identity and sexual orientation has become a recent issue, with many activists drawing comparisons between the LGBTQ Equality movement and the 1960s civil rights movement. The question today remains as to whether affirmative action is an effective means of ensuring a more tolerant America, or if it only makes the problem worse.
Table of Contents
- “Poverty Rate by Race/ Ethnicity, states (2010-2011), U.S. (2011)” (StateHealthFacts.org)
- United States Information and Demographics (CIA World Factbook)
- John F. Kennedy’s Executive Order 10925
- Brown v. Board of Education (1954)
- DeFunis vs Odegaard (1974)
- Richard D. Kahlenberg, “Why not an income-based affirmative action?” (Washington Post)
- Richard Sander, “The Unraveling of Affirmative Action” (Wall Street Journal)
- Touré, “Why We Still Need Affirmative Action” (Time)
Abigail Fisher v. University of Texas
- David Leonhardt, “Rethinking Affirmative Action” (New York Times)
- Nina Totenberg, “Supreme Court Questions University’s Affirmative Action Plan” (National Public Radio)
- Adam Serwer, “Is It Racist To Focus On Race?” (Mother Jones)
Affirmative Action and Jewish/Black Relations
- Daniel Treiman, “Former Foe of Affirmative Action Backs Policy in Michigan Case” (Jewish Daily Forward)
- Mikey Pasek, “Affirmative Action Under Review” (Religious Action Center for Reform Judaism)
- Josh Nathan-Kazis, “Why No-one Talks About Black-Jewish Relations” (Jewish Daily Forward)
- “Reform Movement Opposes Blanket Ban on Affirmative Action in Higher Education” (Religious Action Center)
- Sharae Wheeler, “DeFunis vs. Odegaard: Another Kind of ‘Jewish Problem’” (Seattle Civil Rights and Labor History Project)