Affirmative action had been fading from American political life for the past two decades. Yes, there have been occasionally controversial Supreme Court decisions and a few legislative battles but for the most part it's not dominated the life of Washington or conversation nationally. California is an exception here where the Ward Connerly-led efforts to overturn affiramtive action in higher education prevailed. But if you think back to the landmark Bakke decision of the 70s, affirmative action has nowhere near the potency it once did. Early in the Reagan administration there was thought to repealing Executive Order 11246, the Kennedy-era dictum that became the basis of federal affirmative action programs. But it was never repealed and for the most part the basic structures of affirmative action have remained in place in Washington and thus the country. Affirmative action has become a part of daily life in thousands of corporate HR offices and in government ones, too. It's not as aggressive as many would like and it hasn't faded away as others would wish.
I'm not sure the Supreme Court's ruling in the New Haven firefighters case will do a lot to change that dynamic. This was a narrow ruling that overturned the city's affirmative action plan which led to whites with higher test scores being passed over. It also was a rebuke to Supreme Court nominee Sonia Sotomayor who ruled in the city's favor as a judge on the Second Circuit Court of Appeals.
It's a safe bet that the Roberts Court will continue to trim affirmative action plans it sees as excessive. It did so in terms of affirmative action in voting rights earlier this month when it allowed a Texas utility district to slip out from under the provision of the Voting RIghts Act that requires jurisdictions in several states, mostly in the South, to seek federal approval before making the slightest change in their voting procedures. Surely more cases will tempt this court.
While the Court may want to grab these issues, politicians don't. Congress has no interest in overturning long established federal policy and you don't see the Business Roundtable or the Chamber of Commerce pounding on courts and the legislature to get out from under affirmative action obligations. Such practices have become routinized in corporate life and to the degree that their presence represents a defense against discrimination law suits--"Why, we have a diversity program in place!"--they are not only not unwanted but welcome.
Still, the New Haven case shows that there's still a populist anger out there about affirmative action. The Supreme Court, far from stoking that anger, will probably dampen it by striking down the more exotic forms of ensuring diversity in schools or the work force or contracting.
It's telling that affirmative action isn't the stuff of campaign ads and fiery political speeches. During the Bush years did Republican Washington make big efforts to repeal federal affirmative action policy? This isn't a consuming passion of the GOP and given its faltering efforts to appeal to Hispanic voters it isn't likely to be.
And so New Haven will have to come up with another way, should it so choose, to diversify its fire department. But the city that gave birth to George W. Bush is not so atypical. It's embraced affirmative action and is muddling through its implimentation. That's where we're at as a country. Our passions, though, are elsewhere.
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