The resistance in some areas continues. Just this year, the longshoremen’s union in New York refused to comply with a plan advanced by New York harbor’s waterfront commission to promote diversity among dockworkers.
One consequence of the failure to engage the public’s imagination and moral core in advancing affirmative action is that when anti-affirmative activists like Ward Connerly took the question of affirmative action out of the courts and directly to the people through ballot initiatives, affirmative action suffered yet another blow. Belatedly we learned that even a conservative Supreme Court can be more liberal on race than a majority of the electorate.
The result is that affirmative action, which initially promised transformative returns for working-class women and minorities in jurisdictions across the U.S., was successfully undermined, even as we devoted disproportionate attention to affirmative action in university admissions. Today, with the U.S. economy in continued peril, and with the strongest threats to public-sector jobs as well to construction and other infrastructure employment, the chances for a renewed commitment to affirmative action in employment is slim.
Which brings us to the Supreme Court’s consideration of the Fisher case this term. Unlike employment, higher education is the one area in which affirmative action has been largely successful. Thousands of minority students have benefited from the commitment of universities and professional schools to create a diverse student body. Equally, white students and institutions have benefited from the presence of minority students, whose perspectives, experiences and intellectual contributions have invigorated discourse, provided exposure to important aspects of American life and helped incubate a multiracial class of leaders in the nation that was unimaginable 50 years ago.
The stage may be set for the five-member conservative majority on the court to imperil the ongoing vitality of affirmative action. Chief Justice John Roberts, who, in opposing the modest, voluntary public-school affirmative-action plan in Parents Involved in Community Schools v. Seattle, famously said (pdf), “the way to stop discrimination based on race is to stop discriminating based on race,” could not have crafted a better context in which to announce further limits on affirmative action. With a weak economy resulting in little inclination among working-class to promote efforts to “share the pie” and a black president who is disinclined to talk publicly about race, the climate may never be better for the court to turn its back on affirmative action.
But whatever course the court takes, it remains up to civil rights advocates to find a way to begin a renewed conversation about race and affirmative action — one that respects the legitimate fears of whites struggling in an unforgiving economy, but that reminds us why affirmative action is an investment in the future of a better America for all of us.
Sherrilyn A. Ifill is a professor of law at the University of Maryland Francis King Carey School of Law and a civil rights lawyer.