While many observers have come to the conclusion that affirmative action is in jeopardy, little attention has been given to why this is so. Perhaps unsurprisingly in an era of an increasingly conservative judiciary and an apparent Republican stranglehold on the presidency, most explanations have focused on attacks in the courts and by conservative politicians. However, the greatest threat to affirmative action stems not from attacks by the right but from its abandonment by the left.
To be sure, the conservative assault on affirmative action ought not to be minimized. The Supreme Court, for example, has continued to chip away at affirmative action's legal foundations. By narrowly defining what constitutes an acceptable justification for an affirmative action plan, by placing heavy burdens on a government attempting to establish the necessary factual predicate for a plan, and by rigorously scrutinizing plans to make sure they target deserving beneficiaries and do not unduly burden nonbeneficiaries, the Court is continuing to narrow the scope of permissible affirmative action. These developments have been accompanied by criticisms of affirmative action in the political arena, both by conservative whites eager to tap anti-black sentiment among the white electorate and by a growing number of black conservatives concerned about the stigma suffered by the beneficiaries of affirmative action.
Criticism of affirmative action by black and white conservatives is neither new nor surprising. However, the critics have recently found an unlikely source of support. It is becoming increasingly apparent that the conservative attack on affirmative action has been accompanied and nurtured by the collapse of affirmative action's supporters, who have shown an unfortunate willingness to abandon it and the vision of civil rights and government/corporate responsibility that sustains it. Perhaps the best illustration of this phenomenon, and the danger it poses, is the debate surrounding the Civil Rights Act of 1990/91.
The Civil Rights Act of 1990/91 was an attempt to expand employment discrimination protection for minorities and women, as well as to overturn a series of 1989 Supreme Court decisions limiting the scope of employment discrimination law. The bill was the main legislative priority for many civil rights organizations and liberal Democrats, just as stopping the bill was a key goal of the Bush Administration, Republican members of Congress and business groups. The principal opposition tactic, as has become well known, was to paint the bill as "quota" legislation. Opponents alleged that the bill would force employers to pay close attention to the race and gender of all job applicants, and in many cases hire minorities and women who were not as well qualified as whites under the employer's traditional method of determining merit.
Employment discrimination experts agree that antidiscrimination laws such as the Civil Rights Act encourage, and in many instances require, affirmative action. They do so by forcing employers to justify practices that disproportionately exclude minorities. If the employer is unable to prove that its practices are necessary to business, it must either abandon them or adopt affirmative action measures to insure that it hires sufficient women and minorities. In light of this reality, it is remarkable that nowhere to be found, either in the numerous press statements or in months of testimony before House and Senate committees, was a principled defense of affirmative action, of hiring with an eye to race. Also absent was any discussion of the well-documented inadequacy of many traditional measures of merit. In sum, none of the bill's supporters attempted to articulate a vision of civil rights that demands taking account of color as a critical element on the road to equality. Instead, the civil rights leadership abandoned the cause, explicitly denying that …