The Making of Reverse Discrimination

How DeFunis and Bakke Bleached Racism from Equal Protection

Ellen Messer-Davidow

• Publisher: University Press of Kansas
• Year: 2021
• ISBN:
  9780700632220
• Topic: Droit
• Subtopic: Loi sur la discrimination

In The Making of Reverse Discrimination Ellen Messer-Davidow offers a fresh and incisive analysis of the legal-judicial discourse of DeFunis v. Odegaard (1974) and Regents of the University of California v. Bakke (1978), the first two cases challenging race-conscious admissions to professional schools to reach the US Supreme Court. While the voluminous literature on DeFunis and Bakke has focused on the Supreme Court's far from definitive answers to important constitutional questions, Messer-Davidow closely examines each case from beginning to end. She investigates the social surrounds where the cases incubated, their tours through the courts, and their aftereffects. Her analysis shows how lawyers and judges used the mechanisms of language and law to narrow the conflict to a single white male applicant and a single white-dominated university program to dismiss the historical, sociological, statistical, and experiential facts of "systemic racism" and thereby to assemble "reverse discrimination" as a new object of legal analysis.In exposing the discursive mechanisms that marginalized the interests of applicants and communities of color, Messer-Davidow demonstrates that the construction of facts, the reasoning by precedent, and the invocation of constitutional principles deserve more scrutiny than they have received in the scholarly literature. Although facts, precedents, and principles are said to bring stability and equity to the law, Messer-Davidow argues that the white-centered narratives of DeFunis and Bakke not only bleached the color from equal protection but also served as the template for the dozens of antiâ€"affirmative action projects—lawsuits, voter referenda, executive orders—that conservative movement organizations mounted in the following years.

PART I

THE CATALYSTS

1

FRENEMIES

There were many culprits in this controversy. . . . This is a strange way for “friends” to act.

—Ad Hoc Committee of Concerned Black People, “Are Jews Free from White Racism? A Black Position on ‘Anti-Semitism’” (1969)

When DeFunis v. Odegaard entered the halls of the United States Supreme Court in the early months of 1973, it was surrounded by a crush of wrangling organizations that pressed their arguments in twenty-five amici curiae (friends of the court) briefs. According to Washington attorney general Slade Gorton and senior assistant attorney general James B. Wilson, who defended the University of Washington, the “friends” displayed some curious rifts.¹ Siding with DeFunis were the B’nai B’rith Anti-Defamation League (ADL), the Jewish Rights Council, and the American Jewish Congress, but siding with the university in a collective brief written by Marian Wright Edelman and Joseph Rauh Jr. were three more Jewish groups—the National Council of Jewish Women, the Union of American Hebrew Congregations (UAHC), and the UAHC’s Commission on Social Action. Also siding with DeFunis was AFL-CIO, but siding with the university in the collective brief were four AFL-CIO affiliates—the United Mine Workers; the United Auto Workers; the United Farm Workers; and the American Federation of State, County, and Municipal Employees. Gorton and Wilson speculated that the AFL-CIO hoped to use a ruling for Marco DeFunis to re-appeal three affirmative-action rulings against white union members, but they did not comment on why the AFL-CIO now made common cause with its foes, the Chamber of Commerce and the National Association of Manufacturers, which historically advocated for the interests of employers over those of workers.²

In 1977 when the Supreme Court agreed to review Regents of the University of California v. Bakke, the justices were inundated by fifty-seven amicus briefs representing more than 240 organizations and individuals. Aligned with Allan Bakke were the Anti-Defamation League, American Jewish Committee, American Jewish Congress, Queens Jewish Community Rights Council, Chamber of Commerce, American Federation of Teachers, New York Council of Supervisors and Administrators, and several white-ethnic groups. Unsurprisingly aligned with the university were minority organizations, academic institutions and associations, and some government agencies. Internal dissension over affirmative action prevented two powerful umbrella organizations, the AFL-CIO and the Leadership Conference on Civil Rights, from submitting briefs.³

Despite the schisms, all of the amici had one thing in common: they hoped or feared that the Supreme Court’s decisions in DeFunis and Bakke would ripple from higher education across other sectors of society—schools, businesses, civil service, unions, housing, and government contracting. If we want to know why the wrangling amici were so exquisitely attuned to this ripple effect, we must return to the late 1960s when they fueled the racial conflict in which DeFunis and Bakke brewed.

THE FRAYING JEWISH-BLACK ALLIANCE

In 1967, when the Black riots and police crackdowns that had devastated Watts two years earlier swept like a typhoon through dozens of American cities, President Lyndon B. Johnson appointed a National Advisory Commission on Civil Disorders. Dubbed the Kerner Commission after its chairman, Illinois governor Otto Kerner, the commission had plenty of turmoil to study because, according to the Brandeis University Civil Disorders Clearinghouse, the nation was wracked by “233 disorders in 1967 alone, and 295 disorders in the first four months of 1968.”⁴ In March 1968, the commission issued a report just shy of 250 folio-size pages that exposed the systemic racism afflicting African Americans who lived in urban and rural dumps across the country. The graphic prose and grim photographs documented poverty, hunger, slum and shanty housing, street garbage, rodent infestations, high death rates, widespread unemployment, substandard schools, crime waves, and police brutality. Predicting that the rioting would worsen, the commission recommended several measures to alleviate these conditions, but the disorder amplified in 1968.⁵ Massive crowds protested the murder of Dr. Martin Luther King Jr. in April, mourned the assassination of Senator Robert Kennedy in June, and demonstrated at the Democratic National Convention in August. An astonished nation watched the televised melee when Chicago mayor Richard Daley activated 20,000 police and national guards, who battered protesters, journalists, campaign staff, and sedate Chicagoans on their way home for dinner.

Contemplating anarchy, officials urged the newly inaugurated president Richard M. Nixon to revive the Philadelphia Plan, a race-conscious program designed to increase the numbers of racial minorities working on federal construction projects in the metro area. Seeing the conflict over affirmative action as an opportunity to split “two major Democratic Party constituencies—civil rights and organized labor—so that it would be impossible for Democrats to satisfy both constituencies at once,” Nixon mobilized the administration in what became a year-long dispute among contractors, unions, advocacy organizations, federal agencies, and Congress members over whether the Philadelphia Plan should include race-conscious hiring procedures and numerical goals.⁶

Meanwhile Vice President Spiro Agnew was castigating universities that used affirmative-action measures to integrate racial minorities into their white campuses. His attack did not signal a reversal of the administration’s policy; rather, he was doing what his boss hired him to do. Nixon’s choice of the Maryland governor as his running mate was a key element of his Janus-faced strategy to win the election by drawing white liberals away from Minnesota senator Hubert Humphrey and white conservatives away from Alabama governor George Wallace. While Nixon spoke of school integration and employment opportunity to appease voters of color and their white supporters, Agnew fed the anxieties of Jewish and white-ethnic groups. From the 1968 campaign until his 1973 resignation, precipitated by a charge of tax evasion, he was the rhetorical point man in his boss’s war against the Black Power and New Left movements, the liberal intelligentsia, the mainstream media, and other presumed enemies. Describing this role in a 1971 speech, he said, “Dividing the American people has been my main contribution to the national political scene since assuming the office of vice president. . . . I not only plead guilty to this charge, but I am somewhat flattered by it.”⁷

Racialized rhetoric flooded into the media during 1968. At an April banquet held in Chicago, the ADL bestowed its human rights award on Governor Kerner for his leadership of the National Advisory Commission on Civil Disorders.⁸ This gala proved to be the curtain call for the Jewish-Black alliance, for within months newspaper articles began exposing the fault lines where racial tensions reverberated. Covering a July meeting in San Francisco attended by 250 leaders of Jewish organizations, New York Times reporter Irving Spiegel described the seismic vibrations. In scores of cities—New York, Boston, Newark, Detroit, Cleveland, Chicago, St. Louis, and westward—African Americans had moved into neighborhoods traditionally populated by low-income Jewish and white-ethnic immigrants who, as they became financially secure, moved to white suburbs but retained their old neighborhood businesses. Reports that African Americans resented these businesses and vandalized them during community protests sent frissons of fear through Jewish and white-ethnic groups nationwide.⁹

Writing about this situation, New York Times reporter Bill Kovach quoted an American Jewish Committee official who refused to be named:

When the Negro moved into the large city he moved into those areas most recently occupied by the Jews and many of the Jews still had vestiges of their holds there—as landlords and shopkeepers. In this conflict situation the symbol of white “oppression,” the slumlords, the overcharging of shopkeepers, was the Jew. Because, historically, Jews had been more helpful in early stages of the conflict between Negroes and whites, they expected more from Jews and resented the fact they sometimes acted like other white men.

To undercut his source’s psychologizing of African Americans, Kovach referenced an American Jewish Committee poll, which showed that Blacks were “less anti-Semitic than the rest of the population.”¹⁰ He did not comment on whether Jews harbored racist sentiments, perhaps unwilling to offend a large segment of the newspaper’s readers.

Employment was another flashpoint. Historically barred from corporate offices, rarely elected to government positions, and only trickling into law and medicine, the second-generation of American Jews flowed into public service jobs where they found themselves working with ghetto dwellers who felt “the jobs should belong to blacks.”¹¹ Mort Yarmon, director of public relations for the American Jewish Committee, told Kovach that

for various historical reasons—among them the Civil Service and merit hiring that opened the professions to Jews when others were closed to them—the Jewish people have moved heavily into the social services and teaching fields, especially here in New York. These are exactly the two “pressure points” at which the Negro now makes his demand that “we be allowed to care for our own, to teach our own.”

Putting it bluntly, Kovach wrote, “Present jobholders are fiercely protective of the merit system that allowed them into the professions despite prejudices. They see a threat to that system from the practice of compensatory hiring to benefit Negroes.”¹² Oddly, Kovach did not notice the parallel between the civil service protections enjoyed by Jews and the civil rights protections promised to racial minorities.

Contemporaneous accounts show that many American Jews used the discourse of anti-Semitism to suture affirmative action to the horrors of the Holocaust and such homegrown haters as the Klan, the Coughlinites, the Birchers, and the McCarthyites.¹³ Widely quoted in the media, Jewish leaders portrayed American Jews as a multiply victimized people who, after surviving virulent anti-Semitism to make good through talent and toil in America, were being revictimized by affirmative-action quotas that threatened to retrench their hard-won access to universities, professions, and upward mobility. But African Americans also felt chronically victimized: after being enslaved, lynched, segregated, and pauperized, they were embittered to find their former Jewish allies opposing their efforts to secure educational and employment opportunities.

NEW YORK, NEW YORK

Historians of identity-group turmoil have studied New York because its demography and economy made it the inevitable site of a racial storm. From the mid-nineteenth century on, Jewish and white-ethnic immigrants flowed to the city, providing a vast supply of low-skilled labor that supported its development as a major urban hub of industry, manufacture, finance, and culture. First-generation immigrants worked at grinding jobs to move their families out of the tenements and up the economic ladder; their children carved up the job territory, with the Irish predominating in the police force, Italians in sanitation, and Jews in the garment trade, public schools, and social services. When the white Protestant elites who ruled the city began modernizing its economy, “New York lost almost half of its jobs in the manufacturing sector” but gained “350,000 white-collar jobs” and 155,000 public sector jobs.¹⁴ The implementation of competitive civil service exams by Mayor Robert F. Wagner Jr. helped those who were attending municipal colleges to move into professions and relocate their families in middle-class boroughs.¹⁵

During the postwar decades, low-skilled African Americans, Puerto Ricans, and Asians flowed to the metro area. In Brooklyn, African American residents ballooned from 4 percent of the total population in 1940 to 25 percent in 1970, turning Bedford-Stuyvesant, Ocean Hill, and Brownsville, once home to a mix of Jewish, Irish, and Italian families, into low-income Black neighborhoods. The people-of-color migrations solidified a Jewish-dominated directorate within the AFL-CIO that consisted of the International Ladies Garment Workers Union (ILGWU), the Jewish Labor Committee (JLC), and the United Federation of Teachers (UFT). But as Black, Puerto Rican, and Asian garment workers grew to outnumber Jewish ones, labor leaders responded by barring them from apprentice programs, union positions, subsidized apartments, and retirement homes ...