THE AFFIRMATIVE ACTION PUZZLE

Can equality be legislated? So asks this thoroughgoing examination of legal efforts to rectify racial injustice through affirmative action.

Many discussions of affirmative action have been derailed through simple confusion of terms, writes Urofsky (Emeritus, History/Virginia Commonwealth Univ.; Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue, 2015). There’s “soft” affirmative action, which encourages equality by way of what amounts to goodwill, and then “hard” affirmative action, which imposes equality by way of quotas and makes it a zero-sum game. In the instance of hard affirmative action, he writes, consider what might happen if Jews were limited entrance by quota into certain professions even as, because of educational success, they lead in several areas of law, medicine, and the like. It’s for that reason that when, in 1970, the federal Equal Economic Opportunity Commission began pushing for hard, quota-based reforms, “every single national Jewish organization protested.” Urofsky’s comprehensive survey examines early efforts at affirmative action, a phrase that appears for the first time in the 1935 Wagner Act but some of whose outlines were in place in the Reconstruction era and during World War I, when women workers replaced men in factories. Urofsky notes that while the literature has emphasized the African American experience, affirmative action has extended to include other groups and has occasioned enough controversy in most instances to lend credence to Justice Harry Blackmun’s observation that “in order to get past race and gender, we have to take race and gender into account.” The author doesn’t stake an advocacy position, for the most part, except to note that in the strictest terms, hard/quota affirmative action is a violation of Title VII and “of the constitutional order, namely, that rights are individual.” He also observes that in recent quota decisions affecting, for instance, the admission of Asian Americans into elite universities, limiting their number has had the unintended consequence of benefiting white males who otherwise might not have made the cut.

A must-read for anyone interested in the history of affirmative action and its associated legal conundrums.