Diversity Leadership Council Newsletter
The newsletter of the ISBA’s Diversity Leadership Council

June 2017, vol. 10, no. 1

‘Diversity and inclusion’ in a dynamic world

Introduction

The diversity and inclusion ideology was initiated as a tool towards integration and desegregation. However, its rhetoric has changed over time under political and legal scenarios. The word “diversity” has become so muddled by overuse, imprecision, inertia and self-serving intentions that it has lost much of its meaning. To some, “diversity” has become an empty signifier.1 For others, the word feels like medicine.2 This article briefly summarizes the history of diversity ideology and reviews developments in areas of integration, racial desegregation, color-conscious policies and pursuit of color-blind justice during the last half-century.

Diversity Ideology

Diversity is an ambiguous term; however, it provokes images of racially-biased history of the United States and the measures taken to overcome the bias. Diversity generally means “embracing differences,” in contrast to racism which is defined as “inability or refusal to accept people who are different from us.”3

The “Embrace Diversity” slogan generally means promoting desegregation, integration and inclusion of minorities and women in a group; and opening the job, business and educational opportunities to, and eliminating social and economic disadvantages for, all. The notion of diversity divides Americans into two groups: dominant or default group; and the other or minority group. The default group is presumed to have societal power and considered to have no diversity; the other group provides the level or numerical degree of diversity to the integrated group or entity.4 The “other” group includes everyone else, presumed to be the victim -- having suffered or is presently suffering at the hand of the dominant group. There is divergence of opinions about “diversity.”

In defining diversity, the native-born white heterosexual males are generally considered as the dominant group.5 The term “white” generally means a Euro-American. When diversity is considered on racial lines, whiteness is considered as the default, and no race or identity is attached to it. However, all others are given a racial identity, such as African-Americans, Latinos, Asians, Natives, etc.6 White is a category that evades race, identity or color while others are considered as “colored.” For example, in school curricula, one month is reserved for the study of black history while the rest of the year is for just plain history.7 By embracing the diversity concept, all minorities are considered equal and the same to each other on one hand, and whites or Euro-Americans as a homogenous mass on the other. Critics question whether the diversity ideology based on group rights superseding individual’s rights is a proper tool to achieve a color-blind and gender-blind society, free of discrimination.8 This article summarizes the growth and challenges it has faced.

Affirmative Action and Equal Opportunity Programs

In the wake of the long history of segregation directed primarily against African Americans, the U.S. Supreme Court in its landmark decision in Brown v. School Board of Education prohibited state-mandated segregation in schools.9 There was considerable resistance to the integration ruling from a segment of the population that considered whiteness as a property interest.10 Bowing to the resistance, the Court took a step back in Brown II, requiring only a “prompt and reasonable start towards full compliance.”11

Recognizing the need for a policy to remedy segregation prevalent in the society, President John F. Kennedy signed an executive order in 1961 ordering that federally funded projects “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin.”12 This was the first time the term “affirmative action” was used in an executive order. The 1964 Civil Rights Act made it illegal for an organization to engage in employment discrimination on the basis of race, sex, color, and religion.13 A year later, President Johnson introduced the term “equal opportunity” in an executive order:

It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all qualified persons, to prohibit discrimination in employment because of race, color, religion, sex or national origin, and to promote the full realization of equal employment opportunity through a positive, continuing program in each executive department and agency. The policy of equal opportunity applies to every aspect of Federal employment policy and practice.14

Pursuant to the Executive Order, affirmative action was initiated in 1965. It consisted of government-mandated or voluntary programs and activities undertaken specifically to provide equality of opportunity to minorities and white women who had been previously confined to menial jobs.15 However, the white community perceived the program as preferential treatment, quotas, and minority group rights, and claimed that the program did not help those who were truly “disadvantaged.” Thus, the program became unpopular and gradually morphed into a charged and divisive topic. Several lawsuits were brought in over the constitutionality of racial preferences in the workplace, and against universities over consideration of the students they accepted.16

Color-Blind and Sex-Blind Policy

In 1984, Ronald Reagan was elected on the slogan of smaller government and color-blind justice. The smaller government implied, among other things, curtailment of federal enforcement of civil rights laws.17

The Reagan administration was opposed to the affirmative action requirements of Executive Order 11246 and contemplated modifying it to prohibit employers from using “quotas, goals, or other numerical objectives, or any scheme, device, or technique that discriminates against, or grants any preference to, any person on the basis of race, color, religion, sex, or national origin.”18 President Reagan pursued an ideal of color-blind law in which all individuals are treated equally, regardless of race. Reagan, marking the first national holiday honoring the memory of Dr. Martin Luther King Jr., affirmed his policy to achieve a color-blind society:

We are committed to a society in which all men and women have equal opportunities to succeed and so we oppose the use of quotas. We want a color-blind society, a society that, in the words of Dr. King, judges people ‘not on the color of their skin, but by the content of their character’.19

According to President Reagan, the only way to achieve a color-blind society was to follow color-blind, and not color-conscious, policies. Reagan believed in open competition and that the federal civil rights law guaranteed equality of opportunity. But he was opposed to “equal results” which affirmative action sought. Concerning the reverse discrimination, President Reagan wanted the government to “not cast the blame on individuals for the sins of their parents.” According to Reagan, the remedy for past injustices was to “stop injustice and not compound it with additional injustice.”20

While the Reagan Administration tried to revise or reverse Executive Order 11246 towards the ideal of color-blind justice, the Supreme Court affirmed the racial and gender preferences and quotas in employment in several cases. For example, in 1990, the Court ruled in Metro Broadcasting v. Federal Communications Commission that the government policies that gave an advantage to minority-race persons and businesses in securing a license to operate a television station were substantially related to the federal interest in promoting diversity.21 In Johnson v. Transportation Agency, the Court ruled that racial and gender quotas can be used to rectify the lingering effects of the past societal discrimination and to overcome underrepresentation by minorities and white women in the workplace.22 However, in Adarand Constructors v. Pena, the Court sharply curtailed its support for affirmative action.23

In Adarand, Adarand Constructors, Inc. submitted the lowest bid as a subcontractor for a federal project. Under the terms of the federal contract, the prime contractor would receive additional compensation if it hired small businesses controlled by “socially and economically disadvantaged individuals.”24 The clause declared that “the contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities.”25 Another subcontractor, certified as a minority-owned business, was awarded the contract; Adarand was not. The prime contractor would have accepted Adarand’s bid had it not been for the additional payment for hiring the minority-owned business. Adarand sued, arguing that the presumption of disadvantage based on race alone, and consequent allocation of favored treatment, is a discriminatory practice that violates the equal protection principle of the Due Process Clause of the Fifth Amendment. The Supreme Court ruled that race is not a sufficient condition for presumption of disadvantage and award of favored treatment, and that all race-based classifications must be judged under the strict scrutiny standard. The Court also ruled that the proof of past injury does not in itself establish the suffering of present or future injury.26

Racial Balancing

No federal legislation or guidelines mandated affirmative admission in universities. However, in the 1960s, the black violence in the nation’s cities that spurred the affirmative action programs also fostered an interest among the universities to take initiative and reach out to African Americans and other disadvantaged groups in an attempt to integrate them into the mainstream society.27 In addition, a significant portion of the financial aid was reserved for the four minority groups and the minority students were considered presumptively eligible while white or Euro-American students would have to demonstrate their disadvantage. The universities contended that the affirmative admission policy benefitted the entire student body and their professors by supplying diversity.28

While the universities justified their preferential admission policies, some white students who were not let in despite having above average scores, did not agree with the policies. They filed lawsuits. Until the 1970s, race conscious assignment policies and voluntary desegregation initiatives were not considered invidious discrimination.29 However, in Regents of the University of California v. Bakke, the Supreme Court applied strict scrutiny on preferential admission policies.30 In Bakke, the University of California at Davis (UC Davis) had decided to allow race and ethnicity as factors in admitting students under the policy of “special action” admission, where the standards could be lower. The school had set aside 16 percent of the total seats for the applicants from four disadvantaged groups and lowered the admission criteria for these special admittees.

Allan Bakke, a Euro-American, applied for admission. His application was rejected, despite his having scores and grades higher than both average special and regular admittees. Other well-qualified Euro-American students were also turned away, but it was Bakke who sued. He cited a violation of the Fourteenth Amendment’s guarantee of equal protection of the laws and violation of Title VI of the Civil Rights Act of 1964, which prohibited discrimination on the bases of race, national origin and religion by any program or activity receiving federal financial aid.

Nation of Minorities

The trial court ruled in Bakke that while UC Davis’s admission plan was unconstitutional, plaintiff Bakke did not show that his race kept him from getting admission into the medical school. Both parties appealed. The Supreme Court of California ruled that the burden is upon the state to show that Bakke’s application was rejected for reasons other than his race. The UC Davis appealed to the U.S. Supreme Court. The Court ruled that UC Davis’s admission policy was “undeniably a classification based on race and ethnic background.”31 The Court ruled that Bakke should be admitted in the medical school, but that the university may use diversity as one of the plus-factors in admission.32 Justice Powell writing for the Court stated that:

[The] purpose of helping certain groups . . . perceived as victims of ‘societal discrimination’ does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admission program are thought to have suffered.33

Justice Powell addressed the issue of pitting one race against the other, fostered by racial preferences. Rejecting “two-class theory,” he stated that “the United States had become a nation of minorities. Each had to struggle—and to some extent struggles still—to overcome the prejudices not of a monolithic majority, but a ‘majority’ composed of various minority groups.”34 He pointed out that after all race- and nationality-based preferences are drawn, the only “majority left would be a new minority of white Anglo Saxon Protestants.”35

Racial Balancing

With Bakke as precedent, Parents Involved in Community Schools v. Seattle School District No. 1 was decided in 2007.36 In Parents Involved, the school district used racial balancing to avoid over-subscription by one race in any of its 10 high schools. The district classified the students as white or non-white. The non-white category included all other races and ethnicities. Race was used as one of the tie-breakers for the race-balancing. Justice Roberts writing for the plurality decision of the Court ruled that the school district’s policy was unconstitutional and that strict scrutiny is the proper standard of review for race-conscious assignment policies which allocate children to public schools on the basis of race, and that the principle of our Constitution is color-blind.37

Summary

This article presents a brief review of the diversity and inclusion ideology and the barriers and challenges it has faced in the last 60 years. In contrast to the affirmative action program, diversity is a passive ideology, since it does not challenge the status quo. To some, “diversity” has become a code word and lacks specific meaning. Some consider it “skin deep” and analogize it to taking medicine. However, the pursuit of diversity and its rhetoric is ubiquitous in the American workplace. Capitalism is color-blind. In this respect, an entity should use diversity as a tool to get the best workforce available for its business. Regarding the constitutionality of the diversity ideology, race-balancing, presumption of disadvantage based on race alone, and consequent allocation of favored treatment, the Supreme Court, in its most recent decisions, has held that strict scrutiny is the proper standard of review for race-conscious policies.

__________

1. Jeff Chang, Who We Be: The Colorization of America (St. Martin’s Press.2014).

2. Anna Holmes, Has ‘Diversity’ Lost Its Meaning?, N.Y. Times Magazine, Oct. 27, 2015, available at http://www.nytimes.com/2015/11/01/magazine/has-diversity-lost-its-meaing.html?_r=0

3. Walter Benn Michaels, The Trouble with DiversityHow we Learned to love Identity and ignore Inequality, at 3 (Metropolitan Books 2006).

4. Holmes, supra note 2.

5. Holmes, supra note 2.

6. Laila Lalami, The Identity Politics of Whiteness, N.Y. Times Magazine, Nov. 21, 2016, available at http://www.nytimes.com/2016/11/21/magazine/the-identity-politics-of-whiteness.html?_r=0

7. Lalami, supra note 6.

8. Nicholas Laham, The Reagan Presidency and the Politics of Race: In Pursuit of Colorblind Justice and Limited Government (Praeger 1998).

9. Brown v. Bd. of Educ., 347 U.S. 483 (1954).

10. Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707 (1993).

11. Brown v. Sch. Bd. of Educ. II, 349 U.S. 294 (1955).

12. President John F. Kennedy, Exec. Order No. 10925 (1961) (emphasis added).

13. 42 U.S.C. § 2000d et seq.

14. President Lyndon B. Johnson issued Executive Order 11375—Amending Executive Order No. 11246 of September 24, 1965, Relating to Equal Employment Opportunity, 1967 (emphasis added).

15. Laham, supra note 6, at 31.

16. Id.

17. Id.

18. Laham, supra note 6, at 77, et seq.

19. Laham, supra note 6, at 75 (quoting President Reagan’s radio address of Jan. 18, 1986).

20. Laham, supra note 6, at 89 (quoting President Reagan, Public Papers of the Presidents of the United States, 1986).

21. Metro Broad., Inc. v. Fed. Commc’n Comm’n, 497 U.S. 547, 564-65 (1990), overruled by Adarand Constructors v. Pena, 115 S. Ct. 2097 (1995).

22. Johnson v. Transp. Agency, 480 U.S. 616 (1987).

23. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

24. Id. at 205.

25. Id.

26. Id. at 210.

27. John D. Skrentny, The Minority Rights Revolution, at 166 (2004).

28. Skrentny, supra note 27, at 171.

29. For example, a federal court allowed the universities’ preferential treatment of the minorities if the state could show substantial interest in preferences and that no less objectionable alternative existed. Alevy v. Downstate Med. Ctr., 348 N.E. 2d 537 (N.Y. 1976)

30. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

31. Id. at 289.

32. Id.

33. Id. at 310.

34. Id. at 292.

35. Id. at 296.

36. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1¸ 127 S. Ct. 2738 (2007)

37. Id.

 

This article was originally published in the Kane County Bar Association’s Bar Briefs April 2017 Diversity issue.

Mohammad “Mo” Iqbal, Esq. received his J. D. from Northern Illinois University, College of law, L.L.M. from John Marshall Law School, MBA from the University of Chicago and Doctor of Science degree in Civil Engineering from Washington University at St. Louis. Previously, he has served as General Counsel of Walker Parking Consultants/Engineers, Inc. He may be reached at mi@iqbalgroup.us.