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Remedying Past Discrimination: Following the 'Anderson' Model

April 26, 1998|Ian Ayres | Ian Ayres, currently a visiting professor at the University of Illinois, is a law professor at Yale Law School

CHAMPAIGN, ILL. — On Easter morning, 59 years ago, Marian Anderson walked to a microphone at the Lincoln Memorial and began to sing "My Country, 'Tis of Thee." Anderson was a contralto with a voice that conductor Arturo Toscanini said "came once in a hundred years." But a few months earlier, the Daughters of the American Revolution had refused to rent the only large concert hall in Washington to Anderson because she was black. First Lady Eleanor Roosevelt was so outraged by the DAR's action that she not only resigned from the organization, but also prompted the National Park Service to invite Anderson to sing.

More than 75,000 came to hear Anderson that day. Millions listened on radio. Beyond the concert's artistic and emotional impact, the event came to be seen as the first strategic victory of the modern civil-rights movement. Decades later, when Martin Luther King Jr. chose to speak at the Lincoln Memorial, the memory of the crowds at Anderson's concert must have served as a guide. Giving Anderson access to the memorial seemed an appropriate way to make up for the DAR's hateful discrimination.

But, strikingly, a majority of federal appellate judges have interpreted the Constitution in a way that would make Anderson's invitation unlawful. Put simply, there is now a dominant view that the government can use racial preferences to remedy only the government's own discrimination. Thus, for example, the Third Circuit Court recently held that, "under the Constitution a public employer's remedial affirmative-action initiatives are valid only if crafted to remedy its own past or present discrimination."

Even the Clinton administration, which seeks to "mend, not end" affirmative action, has accepted the premise that racial preferences can only be used to remedy government discrimination. A recent Justice Department guideline states: "Affirmative action in federal procurement is not a means to make up for opportunities minority-owned firms may have lost in the private sector."

But the whole purpose of Anderson's invitation was to make up for the opportunities she lost in the private sector. The federal government at that time did not normally open the Lincoln Memorial for public concerts. The invitation to Anderson was a race-conscious preference, a form of affirmative action, to remedy the DAR's private discrimination.

Anderson's invitation was one of the federal government's first attempts in this century to rectify the continuing harms of racial discrimination. Yet, somehow, we've gone from thinking that making up for private discrimination is an appropriate first step to thinking it is illegal. How did we get from there to here?

The stark contrast between earlier thinking and the current attitude of many federal judges and the administration is explained by two changes in the way the U.S. Supreme Court has come to view affirmative action. First, the Supreme Court began to view private discrimination as historically distant, amorphous and therefore hard to prove. The justices increasingly found that generalized assertions of such "societal" discrimination provided "no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy."

Second, the court began demanding a closer identity between the harm caused by discrimination and the government benefit offered as a remedy. By 1986, Justice Lewis F. Powell Jr. was comfortable in concluding that the Supreme Court always "has insisted upon some showing of prior discrimination by the government unit involved before allowing limited use of racial classifications in order to remedy such discrimination." Restricting racial preferences to the "government unit involved" in discrimination not only ended government remedies for private discrimination, but also meant that government couldn't use affirmative action in one area--say, public employment--to make up for past discrimination in another--such as public high schools.

Insisting government can use affirmative action only to remedy its own discrimination has far-reaching implications. Writer Jeffrey Rosen has offered this syllogism: "The Supreme Court will only uphold federal racial set-asides in light of convincing evidence of past discrimination by the federal government itself; but, for almost 20 years, the federal government has been discriminating in favor of minority contractors rather than against them." Therefore, Rosen concludes, federal affirmative action in procurement is doomed.

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