THE NATION : AFFIRMATIVE ACTION : Improbable Fighters of Racial Injustice

To argue that affirmative action is a perversion of civil-rights laws, an increasingly common tactic of those who would dismantle America’s system of racial and gender preferences, amounts to historical nonsense.

The concept emerged directly from the judicial crucible of civil rights, the old Fifth Circuit Court of Appeals, headquartered in New Orleans. The court’s jurisdiction, extending from Savannah to El Paso, covered six states of the Confederacy, including the Alabama and Mississippi that George C. Wallace and Ross Barnett governed. A handful of Southern judges, most of them Eisenhower Republicans, fleshed out the bare bones of the Supreme Court’s Brown vs. Board of Education decision into a broad mandate for racial justice. Their court became the institutional equivalent of the civil-rights movement itself.

The court’s scholar, Judge John Minor Wisdom of New Orleans, elaborated the constitutional rationale for affirmative action in a 1967 school-desegregation case, U.S. vs. Jefferson. “The Constitution is both colorblind and color-conscious,” Wisdom wrote. “To avoid conflict with the equal-protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is colorblind. But the Constitution is color-conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate government purpose.”

Judge Frank M. Johnson Jr., another of the legendary Republican judges who shaped civil-rights law, declared in a 1979

address to graduating law students at Boston University: “If the life of the law has been experience, then the law should be realistic enough to treat certain issues as special: as racism is special in American history. A judiciary that cannot declare that is of little value.”

The idea that the Constitution is “colorblind,” an argument heard often these days from conservatives attacking affirmative action, comes from Justice John Marshall Harlan’s dissent in Plessy vs. Ferguson (1896). That case established the “separate but equal” doctrine, the legal underpinning for government-imposed apartheid in the American South. The lone dissenter in Plessy, Harlan won no support for his “colorblind” argument from his brethren on the Supreme Court, who expressed the prevailing national attitude. So much for “restoring” colorblind fairness.

In Brown vs. Board of Education, the Supreme Court struck down “separate but equal” but left implementation to the lower courts. How to reconstruct an entire social order became a problem for judges in the South to solve. That the courts successfully prevailed amounts to no less than judicial reconstruction, a more lasting achievement than the congressional Reconstruction that followed the Civil War.

In Jefferson, Judge Wisdom provided more than the intellectual rationale for a constitutional basis to “undo the effects of past discrimination.” He also recognized “the fact that Negroes collectively are harmed” by segregation. “The unmalleable fact, transcending in importance the harm to individual Negro children,” Wisdom asserted, “is that the separate school system was an integral element in the Southern states’ general program to restrict Negroes as a class from participation in the life of the community, the affairs of the state and the mainstream of American life: Negroes must keep their place.”

Perhaps the best place to look for the benefits that affirmative action has produced is the Alabama state trooper case, one of the most important success stories of Morris Dees Jr. and his Southern Poverty Law Center. In its move from an all-white department, no state police force in America today can match Alabama’s in terms of racial integration.

The idea of establishing numerical quotas for state hiring in Alabama surfaced in a 1970 case before Judge Johnson. Ironically, the initiative for quotas originated in the Nixon Justice Department. It proposed to Judge Johnson that Alabama be allowed to use whatever system it wanted in recruiting temporary employees for state agencies--as long as one appointment in four was black--matching the roughly 25% black population in the state.

Mindful that experience taught that little happened in overcoming discrimination against a class of people until relief was extended beyond individual victims, Johnson imposed, in 1972, a numerical remedy on the troopers. He ordered the Department of Public Safety “to hire and permanently employ, after the probationary period, one Negro trooper for each white trooper hired until approximately 25% of the Alabama state trooper force is comprised of Negroes.”

Emphasizing he wanted no lowering of standards, he told state officials, “Qualified blacks are out there. I want you to find them.”

By 1978, not a single black trooper had been promoted to the rank of corporal. But after another decade of litigation and federal court direction, the state of Alabama had developed sophisticated procedures for recruiting, training and promoting. When the Reagan Administration argued against the Alabama solution as “reverse discrimination,” the case came before Judge Myron Thompson. He concluded that the evidence demonstrated “the discriminatory effects of past discrimination . . . will not wither away of their own accord” but would require “immediate, affirmative, race-conscious action.”

The Supreme Court upheld, by 5-4, Thompson’s decree in 1986, in United States vs. Paradise. Justice William J. Brennan Jr., writing for the majority, concluded: “The remedy imposed here is an effective, temporary and flexible measure. It applies only if qualified blacks are available, only if the department has an objective need to make promotions and only if the department fails to implement a promotion procedure that does not have an adverse impact on blacks.” He said the race-conscious relief imposed by the case properly balanced “the individual and collective interests at stake, including the interests of the white troopers eligible for promotion.”

At the end of 1991, three black lieutenants were promoted to captain, the department’s second-highest nonpolitical rank; in 1994, the first black trooper was appointed to major. He achieved the highest test score of all the candidates, as did a female black trooper promoted, in 1993, to lieutenant. Both demonstrated that, over time, with the same opportunity for training and experience, they had the right stuff.

The entire trooper force is now more than 25% black, and the Alabama Department of Public Safety is preparing a motion to end court jurisdiction on grounds that it has met the standards set by the court. Richard Cohen, the lead attorney in the case for the Southern Poverty Law Center, anticipates his agency won’t oppose the motion. After more than 23 years in the courts, this case will end as a success.

The leader of the old Fifth Circuit was Judge Elbert P. Tuttle, another Eisenhower Republican. His court, Chief Justice Earl Warren once said in a tribute, “since the day he assumed office, .... has been in the very eye of the storm.” Judges, of course, don’t seek out cases, and Judge Tuttle once told me, “We became what I consider a great constitutional court, and I think we largely have to thank the black plaintiffs for that.”

Judges Tuttle, Wisdom, and Johnson all remain senior judges who continue to perform useful work. Congress has recognized their contributions by naming federal courthouses for them in their home towns of Atlanta, New Orleans and Montgomery.

The ultimate irony of affirmative action is that it flowed from federal judges who had helped build a Republican Party in the south before Barry Goldwater conceived, and Richard Nixon implemented, the party’s “Southern strategy.” Newt Gingrich, the former college history professor, paid hommage to Democratic political leadership in civil rights in his first speech as speaker of the house, but said nothing about these heroic Republican judges.