The Rise and Fall of Affirmative Action

By Meyer, Foy, III | Texas Review of Law & Politics, Spring 2004 | Go to article overview

The Rise and Fall of Affirmative Action


Meyer, Foy, III, Texas Review of Law & Politics


I. INTRODUCTION

What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. ... If the apples will not remain on the tree of their own strength, if they are worm -eaten at the core, if they are early ripe and disposed to fall, let them fall! ... And if the negro cannot stand on his own legs, let him fall also.1

America. It is a place where any obstacle can be overcome, any challenge can be conquered, and any war can be won. It is a place where principles, perseverance, and progression are golden. And yet America is a place where racial strife continues to stir. Even in the long wake of slavery and segregation, as America remains embroiled in its everlasting battle with the bastions of racism, cries of discrimination and inequality have never been more prevalent. It is this phenomenon that has caused issues related to race, namely, affirmative action, to become some of the most divisive and hotly debated controversies in modern America. More than a mere controversy, however, affirmative action is a modern reality that has crept its way into nearly every facet of the American way of life. And because it affects every individual in a profoundly personal way, it has drawn social, political, and judicial battle lines that will not soon fade. The pervasiveness of the debate over affirmative action is largely a product of the kinds of arguments that it fuels, many of which are based more upon personal experience and emotion than upon objective analysis or logic. In this regard, this Article and the conclusions drawn herein are no different than all the rest. However, the fundamental purpose of this Article is not simply to rehash all of the old arguments for and against affirmative action with some personalized conclusion that favors one side over another. Rather, it is to track the rise of affirmative action through history in a way that not only explains affirmative action's anomalous existence today, but where it is headed in the future. Additionally, through a historically expansive approach, this Article seeks to address and clarify many of the analytical misconceptions and historical inaccuracies that all-too-often permeate modern discussions about affirmative action.

Part II of this Article provides an overview of the historical treatment of race -relations in America from the ratification of the Constitution in 1788 until the period of Reconstruction following the Civil War, paying particular attention to the colorblind considerations that led to the adoption of the Reconstruction Amendments. In Part III, this Article reviews the peculiar collection of judicial decisions that originally institutionalized segregation and the separate-but-equal doctrine under the Fourteenth Amendment. More importantly, Part III considers the rise of affirmative action during the mid -twentieth century in light of the liberal political agendas of Presidents John F. Kennedy and Lyndon B. Johnson, the passage of the Civil Rights Act of 1964, and the gradual transformation of the Civil Rights Movement's original vision of racial equality into one of socialistic racial preferability. Part IV reviews the methodology that the Supreme Court has employed in orchestrating the gradual demise of affirmative action in the context of a series of cases challenging the statutory and constitutional permissibility of affirmative action. Part IV also analyzes the Court's split decisions in Grutter v. Bollinger and Gratz v. Bollinger and provides some insights as to the probable future of affirmative action in the wake of those decisions.

II. THE ORIGINS OF THE CIVIL RIGHTS MOVEMENT AND AFFIRMATIVE ACTION: THE 1788 CONSTITUTION, THE CIVIL WAR, AND RECONSTRUCTION

In order to understand fully the rise and fall of affirmative action and its socialistic quest for racial preferability in America, it is necessary first to become acquainted with its historical and political origins. A modern subject of interminable political and judicial debate, "affirmative action" was not a term in common usage prior to the Civil Rights Movement of the 1960s. …

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