December 06, 2005

Affirmative Distortion

The American Association for Affirmative Action (AAAA) has taken up the attack on Judge Alito's civil rights record – including his record on affirmative action – calling it "very troubling " and "suggest[ing] that Judge Samuel Alito is not prepared to represent all Americans or to fill the shoes of the distinguished Justice Sandra Day O’Connor." However, the AAAA's arguments – described in its December 5 press release – suffer from serious flaws.

The truth is we don't know what Judge Alito's personal or jurisprudential views on affirmative action are, as evidenced by the fact that AAAA can point to no more than a few tidbits from twenty years ago as indicators of those views. But even if we assume, for argument's sake, that Justice Alito would be skeptical of affirmative action – that is, preferences for minorities – it is hard to explain AAAA's negative comparison to Justice O’Connor. Although O'Connor did author an opinion upholding an affirmative action admissions plan in Grutter v. Bollinger, she has sided with the party challenging an affirmative action plan on most of the occasions that the issue has come before the Supreme Court. The examples include a broad range of affirmative action programs, encompassing employment (Wygant v. Jackson and Sheet Metal Workers v. EEOC), contracting (Adarand v. Pena and Richmond v. Croson), admissions (Gratz v. Bollinger), and government licensing (Metro Broadcasting v. FCC).

Perhaps the most interesting thing about AAAA's press release is that it reveals that AAAA – like much of the civil rights community – has never come to grips with the discriminatory nature of affirmative action. The press release describes President Johnson's famous Executive Order 11246, issued in 1965, as "requir[ing] that federal contractors . . . use affirmative action," but the release goes on to claim that "the Executive Order and its regulations do not require or condone preferential treatment." That is an outright contradiction, because affirmative action is, by definition, preferential treatment for minorities or other "disadvantaged" classes of people. That is precisely why it is controversial and subject to legal challenge. When affirmative action is challenged in court, the issue is not whether minorities are receiving preferences, but whether those preferences can be justified by diversity or the like. I bring this up not to find fault with AAAA, but to point out that the Left often defends affirmative action by refusing to acknowledge it for what it is. Thus, it is no wonder that AAAA cannot imagine that Judge Alito – and the American people – might have reservations about affirmative action while being entirely supportive of anti-discrimination laws.

Of course, AAAA would like us to believe that Alito is unsympathetic to victims of discrimination. But, like other attempts to support this claim, AAAA's press release paints a distorted picture of Alito's record by omitting mention of cases in which he ruled in favor of civil rights plaintiffs, and portraying rulings based on procedural and/or narrow issues as broad rulings against civil rights. Ample examples of both types of distortion can be found in a report by the Committee For Justice. Accordingly, I won't go into detail here, except to recommend looking at the report's examples of cases where Alito has ruled for plaintiffs claiming race discrimination (Brinson and Williams), disability discrimination (Polini and Shapiro), age discrimination (Showalter), and violations of other employee rights (Mitchum).

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