Burning Down the House: Politics, Governance, and Affirmative Action at the University of California

3. The Context Shaping the Affirmative Action Contest at UC

25 3 The Context Shaping the Affirmative Action Contest at UC BROWN V. BOARD OF EDUCATION Affirmative action policymaking at the University of California was shaped in myriad ways by the Supreme Court’s 1954 ruling on public education in Brown v. Board of Education. In Brown, the Court held that racial distinctions at the core of segregationist education laws violated equal protection under the Fourteenth Amendment. As a result of Brown, so-called separate but equal educational facilities were ruled unconstitutional. Brown served not only to launch the battle over desegregation of public schools, but it also inspired a series of challenges to racial discrimination in education that continue to this day. In Brown, the Court noted that racial classifications were divisive, and that individuals were to be judged independent of their racial heritage (Howard, 1997). Brown holds a special place in the UC affirmative action contest, as it was used as an integral reference for arguments both for and against affirmative action. That is, proponents of affirmative action cited the actions of Regents endeavoring to end existing policies as efforts to roll back a process of equalization that began with Brown. Proponents of ending UC affirmative action policies also cited Brown, except that in their view it was a ruling that sought to end precisely what UC affirmative action promoted, policies based on group racial affiliations. In 1961, President Kennedy signed Executive Order 10925 establishing the Equal Employment Opportunity Commission (EEOC) to hear complaints of racial discrimination in the workforce. In 1963 the president signed the Equal Pay Act, which introduced the first federal prohibition on discrimination in wages on the basis of gender. Wage discrimination in contemporary society would be raised as a significant issue in the Regents’ discussions over affirmative action in hiring and contracting. The contemporary argument was slightly different, not that the university or other public sector employers paid differential wages on the basis of gender, but rather that women were disproportionately located in lower-paying positions at the university and in other public sector organizations.1 26 Burning Down the House THE CIVIL RIGHTS ACT OF 1964 Perhaps the most often cited precursor of contemporary affirmative action policy was the passage of the Civil Rights Act of 1964. The act stated, “It shall be unlawful to discriminate in employment or education against any individual because of such individual’s race, color, religion, sex or national origin. While its contributions to ending various forms of overt discrimination were immediately apparent, so were its limitations with regard to more subtle forms of racial and gender-based discrimination. The rise of affirmative action programs reflected the rapid change in the conceptualization of antidisrimination efforts. The Civil Rights Act was designed to remedy intentional acts of racial discrimination. To redress other forms of discrimination, aggressive affirmative action would be necessary. Howard (1997) conceptualizes the creation of affirmative action policies in the mid-sixties as the product of three key challenges. The first was that “Blacks were excluded from participation in society by intentional discrimination ” and by “institutional racism.” Institutional racism manifested as “disparate impact,” where racial and gender discrimination was the product of hiring criteria or social circumstances that had “a disparate or negative impact on a ‘protected class’”(p. 30). Second, it was necessary to act affirmatively to eliminate institutional barriers to equal participation, and third, eliminating those barriers would require new standards to ensure access to education and employment for groups that were disproportionately suffering the impact of discrimination and institutional racism. NATIONAL AFFIRMATIVE ACTION The move beyond nondiscrimination law to affirmative action policies generated an immediate and lasting controversy. The move to affirmative action was seen in many quarters as violating the “color-blind” provisions of the Fourteenth Amendment, and as a move away from both Brown’s call to end benign racial classification, and the Civil Rights Act’s abolition of differential access on the basis of race (Mills, 1994). A decade after the passage of the Civil Rights Act, Alan Bakke, in his litigation against UC Davis’s denial of his application to its medical school, would base a significant element of his complaint on his right to protection against discrimination in education under Title VI of the Civil Rights Act. Despite the controversy, the Supreme Court subsequently upheld a number of challenges to affirmative action. At the same time...