"Preventing discrimination and promoting diversity"
Affirmative Action 2002
Interview with Ayanna Hawkins
Americans for a Fair Chance
Ayanna Hawkins is the Policy Program Director with Americans for a Fair Chance. "AFC is a civil rights public education consortium that is dedicated to the preservation of affirmative action. There are six member organizations that make up the consortium. They include the NAACP Legal Defense and Education Fund Inc.; Mexican American Legal Defense and Education Fund; the National Asian Pacific American Legal Consortium; the Lawyers Committee for Civil Rights Under Law; the National Women's Law Center; and the National Partnership for Women and Families. These organizations came together in the mid-'90s to advocate on affirmative action through public education. At that time, in the mid-'90s there was a full-scale assault on affirmative action and these groups came together to put together the truth and speak to the nation about what affirmative action is." Their web site address is www.fairchance.org.
In this interview there are several references to the history of affirmative action -- see The History of Affirmative Action Policies (will open in separate browser window for easy reference). The interview was conducted by phone (from San Diego) for In Motion Magazine by Nic Paget-Clarke.
In Motion Magazine: What do you think is the current situation for affirmative action in the U.S.?
Ayanna Hawkins: I think that affirmative action continues to be under assault. I believe that there is a public mis-education campaign by opponents of affirmative action who mislabel it and mischaracterize it as quotas and preferences. I believe that when people constantly get negative messages and misinformation about an issue they tend not to support that issue but, in fact, affirmative action is just the opposite in terms of what it truly is and what it truly does for America.
Proactively seek to provide opportunity
In Motion Magazine: What is affirmative action?
Ayanna Hawkins: Affirmative action is a set of programs that proactively seeks to provide opportunity for people of color, for women, and people throughout the country. It does not include quotas or preferences but it does require people to prospectively go out and recruit, retain, mentor, and do outreach to people who would not necessarily be considered for positions in employment and in education. Similarly, in government contracting it provides opportunities to businesses which may not have been considered in the first place.
Creating a critical mass
In Motion Magazine: So why do opponents say affirmative action is quotas? Is there a root to that?
Ayanna Hawkins: I think that the quotas argument comes in when we talk about achieving certain goals and putting a timetable on those goals. For example, when you say that you are looking to bring in more Latinos based upon the population of a particular municipality. Let's say you are Houston and you realize that you have a large Latino population and you want to make sure that the Latinos in that municipality have opportunities so you prospectively go out and do recruitment. You start bringing them in. Well, people will look at that and say 'you are trying to hit a certain quota'. In fact, a quota is a ceiling or a floor, it's a fixed number. Affirmative action is not trying to get a fixed number. When you say that you have a specific goal in mind, such as, increasing the number of Latinos in a certain environment, people tend to interpret that as fulfilling a quota, when you are really trying to create more opportunities.
The University of Michigan case
In Motion Magazine: Is the most significant thing that has happened recently the University of Michigan case?
Ayanna Hawkins: Absolutely. We have been following that very closely and we consider that case to be as significant as Brown v. the Board of Education. We've been waiting for the undergraduate decision and we are watching carefully to see what happens with the law school decision, as that will probably be appealed to the Supreme Court.
In Motion Magazine: Could you sum up the Michigan case?
Ayanna Hawkins: Back in 1997, there were two lawsuits filed by unsuccessful white applicants to the University of Michigan. Jennifer Gratz was an unsuccessful applicant to the undergraduate school of literature, arts and sciences and Barbara Grutter was an unsuccessful applicant to the law school. Both of these cases were brought by the Center for Individual Rights which is a law firm known for its opposition to affirmative action.
These cases have been closely watched because the University of Michigan has been very adamant in its defense of its use of affirmative action to promote diversity in its institutions.
Both plaintiffs claimed that they were denied admission because they believed students of color were allowed in who had, in their opinion, lower test scores and lower. Once the CIR case was filed, two groups of community leaders, community groups, and prospective undergraduates and law students filed suit to intervene in the case to argue that affirmative action was necessary to address discrimination, which is different than the diversity rationale in the universitys case
The interveners argument is that without affirmative action there would be no method of fighting discrimination within the University of Michigan and that in the absence of affirmative action, for example in Detroit which I think is where most of the interveners are coming from, at least in the undergraduate case, their claim is that there would be no effort to recruit them or to try to retain them as students because there would be the perception that these students were not as well qualified. They felt that in filing this intervention they would get their case heard as well.
So, last year, there was in the undergraduate case a positive decision that upheld the use of affirmative action in promoting diversity for the University of Michigan. However, in the law school case, there was an adverse ruling that affirmative action was unconstitutional, that the consideration of race in promoting diversity did not serve a compelling governmental interest.
Recently a decision has come back from the Sixth Circuit on the law school case that reverses that old decision and says that, yes, the use of affirmative action is legitimate to promote diversity in an educational environment. Right now, we are waiting for the decision in the undergraduate case.
Since Ward Connerly in California
In Motion Magazine: If you look back at the University of California and Ward Connerly, at the Texas decisions, at the vote in Washington state, then Florida, and now this - how do you see that ebb and flow?
Ayanna Hawkins: I think that what happened in California was unfortunate. There was a campaign that was full of misconceptions and misrepresentations of what affirmative action is. As you can see there has now been a push-back in California in the admissions process and recently the regents had to go back and rescind the initial resolution that they passed that ended affirmative action back in 1995. They did this because they realized that they were not recruiting students of color in the same numbers that they had been.
Also, in Texas, you can tell that once the Hopwood decision came down the legislature got busy putting together the 10% plan to help recruitment to keep the numbers up, or at least to try to stem what they felt was going to be a devastating blow to the numbers of students of color in the University of Texas system. In Florida you have the Talented 20 program, which is based on the same premise.
I feel that universities and policy makers within these jurisdictions have realized that they can't go out full-scale and end affirmative action because of the devastating effect that it does have on populations of color.
I think that all of this together means that people are looking at affirmative action in a different way. Maybe they are trying to evolve their views.
California just released numbers this April showing that with their evolving approach they are just getting back to the point that they were prior to 1996 when they ended affirmative action. And they are not even up to that level at the flagship universities.
In Texas, with the top ten percent plan, they began to work right away not to allow the impact to fully devastate their recruitment of people of color. But they are also seeing that however well it may be working at one institution, at Texas A&M it's not working as well. Now they are looking at other methods to try to increase the representation of minority students.
In Florida, their plan is relatively new, and it's difficult to tell.
To answer your question, where does that place us, I think that it means we are still facing these challenges and we still have to educate America that in the absence of affirmative action these alternative plans only bring us back up to the point that we were before. It takes time to even get back to that point. The best bet is to continue to use affirmative action because with affirmative action we move forward in terms of creating opportunity for people of color in university settings.
The problem with percentage plans
In Motion Magazine: Do you think there are approaches that are better or more sophisticated than affirmative action?
Ayanna Hawkins: Actually I don't. The problem with the percentage plans in particular is that these plans rely upon residential segregation patterns and the inequities within the K-12 system to provide their diversity. In Texas, the flagships typically had been recruiting in the past from certain feeder schools, less than 100 high schools in the state. They have broadened the scope of where they are getting their students from, but they must rely upon residential segregation to get a significant population of students of color. If a school is located in the inner city the population of that school is likely going to be mostly African Americans and Latino students. When they skim off the top to get their top ten percent those students are more likely to be of color. But those students may not be as well prepared for college as students from other schools. In the past, when affirmative action was used, those other students also had a chance.
Which is not to say that those students still do not have an opportunity to get in, it's just that when you go with an "X" percent plan you limit the capabilities of other students to get into those schools. I think that these plans are merely band aids because they don't address the other inequity issues that take place on the K-12 level.
I haven't seen any other plans or alternatives to affirmative action that I think would work better than affirmative action. I think that in the absence of affirmative action these percentage plans are adequate. But a combination of these plans, in addition to continuing outreach and affirmative action - that would be ideal.
Affirmative action in contracts and on the job
In Motion Magazine: Are you monitoring affirmative action in contract situations and on the job?
Ayanna Hawkins: We monitored the contract situation with the Adarand case, which went up to the Supreme Court last year and was dismissed as improvidently granted, and we've been watching a few other cases. For example, there was a case in Minnesota in the 10th circuit that we were watching for a time.
We've heard a lot about different contracting cases in municipalities and we monitored them slightly but we haven't placed a lot of emphasis on these cases because typically they are still in the trial courts.
As far as employment is concerned,there is a recent case involving the Army in which a colonel was denied a promotion - he felt because of the use of affirmative action. We found this pretty ironic because the armed services has been held up for a long time as a best model of affirmative action programs. One of the most prominent beneficiaries of affirmative action in the armed services is our current Secretary of State, Colin Powell. He also happens to be a strong supporter of affirmative action.
It's ironic to see the Army program now under attack. We are watching the case closely to see what happens next.
The Adarand case - three times to the Supreme Court
In Motion Magazine: Please describe the Adarand case you mentioned.
Ayanna Hawkins: This was a case that started back in 1989. Adarand Constructors is a white-owned construction firm that bid on a sub-contract for a guardrail construction contract and was not awarded the contract because the prime contractor awarded it to a minority business enterprise (MBE) - Gonzalez Construction. Adarand filed suit claiming that the use of the MBE instead of him was unconstitutional. He claims that he submitted the lowest bid. This is in the context that at the time the program that was in place awarded a $10,000 incentive for prime contractors to use Minority Business Enterprises in their sub-contracting work. This case is unique because it has gone to the Supreme Court three times.
On the lower court level the government prevailed, the use of MBE was held constitutional. Then it went up to the Supreme Court which ruled in 1995 and changed federal affirmative action laws. The standard of review was to be that the use of any consideration of race had to satisfy a compelling governmental interest and it had to be narrowly tailored to achieve that interest.
When this case was remanded (sent back to the lower court for review), Adarand prevailed and the government again appealed. But, at the same time, the government began to make changes in its MBE program. It changed the criteria for businesses that could qualify. It was no longer only minority- or women-owned businesses that could qualify - any small business owner could be classified as a disadvantaged business enterprise. The subcontracting clause which provided the financial incentive was done away with.
Adarand continued to challenge this case while at the same time he was classified as a disadvantaged business enterprise. The case was dismissed but he went back to the Supreme Court which reinstated his case in 2000. The case was remanded to the 10th circuit and there it was determined that Adarand was not injured by the current program because the program was constitutional. The current program did consider the race of the contractors, but it also considered their financial ability, their net worth, and the worth of their company. It requires an actual proof of ethnicity and proof of disadvantage. This is different from the previous program in which there was a presumption that any minority business enterprise would be considered disadvantaged
At the Supreme court for a third time, the case was finally dismissed.
George W. Bush and affirmative action
In Motion Magazine: What's your assessment of the impact of the Bush administration on affirmative action, in regards to students and contracts?
Ayanna Hawkins: In the contracting case, what was positive was that the Bush administration filed a brief and argued the case in front of the Supreme Court. Beforehand they indicated that they would support the program and would defend it and that's what they did. We are pleased that they did support this program. It's an important program for creating opportunity for disadvantaged businesses, particularly businesses that are owned by minorities and women. That was certainly heartening.
However, in the education context we are not so sure where the Bush administration is. There have been some statements by members of the administration that cast doubt on their willingness to come forward and be as supportive in the education context. We are optimistic that if they do come out and make a statement they will come out on the right side and will support the University of Michigan's case and will support the notion that universities should try to educate the population they serve, and should do affirmative outreach and affirmative action to bring those constituencies in to the university environment.
Achieving a diverse student body
In Motion Magazine: Do you have any thoughts on how things will develop?
Ayanna Hawkins: On the Michigan case, one of the positive things that has been settled, at least in the sixth circuit, is that the use of affirmative action is legitimate when considered for the purposes of achieving a diverse student body.
That was stated affirmatively in the Grutter decision, which came out back in May. In the Gratz case it's doubtful that the court will come to a different conclusion on that respect.
However, we believe that this case presents an issue for final resolution by the Supreme Court. We have a conflicting case in the 5th circuit where in the Hopwood case the court said said that race did not serve a compelling governmental interest for achieving diversity. In the 11th circuit, although the court hasn't said it completely, it validated the program in which affirmative action was being used at the University of Georgia. In the 9th circuit they said that affirmative action is legitimate. And now the 6th circuit has added its voice. The Supreme Court has to step in and create some clarity on this issue. I believe that they will take one of these cases in the next term, either the Gratz case or the Grutter case.
We are cautiously optimistic that the Supreme Court will in fact uphold their precedent in Bakke that the consideration of race is legitimate as a plus factor when looking for achieving a diverse student body.
The courts and grassroots student organizing
In Motion Magazine: A lot of these developments are in court cases, and some of these battles were around ballot issues, but in most situations, such as in Florida, in California, and now in Michigan, there has been a lot of student involvement. How important do you think the role of everyday people is in organizing mass input in these debates?
Ayanna Hawkins: I think the role of students and grassroots organizing can not be underestimated. I think that what it does is put political pressure on the powers that be.
For example, in the case of Florida where affirmative action was eliminated through executive order, organizing down in Florida sent a political message to the governor and to the legislature that there is a constituency that is not happy with this action and this constituency will bring that action to the polls. I think that may explain some of why there was a lot of drama in Florida back in 2000 with the presidential election.
In Michigan also, community involvement has been crucial in sending a message to the governor and the legislature to support the University of Michigan.
In California, student involvement and student pushback were responsible for the rescinding of the two Board of Regents resolutions. The justification was that those resolutions created a hostile environment for students of color. The Regents were feeling the political pressure of the grassroots movement. The movement was making it very difficult for them to justify continuing these resolutions that had ended affirmative action.
The grassroots movement is very important. It has a political impact and it can have one even on the national level. If people continue to organize and continue to let their voices be heard by their organization, speaking out, calling their congress people, calling their mayors, calling their governors, that will translate into some action. I dont know how compelling this type of activism is to a judge, because judges are supposed to be independent of the political process, but at least a message can be sent to politicians that there is a political cost on these issues.
Civil rights - calls for action
In Motion Magazine: It was pointed out to me by a student in Michigan that the concept of affirmative action wasn't actually proposed by the Civil Rights Movement, rather it was something implemented by the government. How do you see affirmative action within the development of the Civil Rights Movement?
Ayanna Hawkins: There have always been calls for the government to do something to address discrimination. The concept of equal opportunity goes back pretty far (see History of Affirmative Action). It goes back to World War II, when Roosevelt issued an executive order (Ex. Order 8802) to encourage equal opportunity and non-discrimination in the defense industry - to encourage the defense industry to hire people of color to work in the factories to help us win the war. The first actual reference to affirmative action was in an executive order by President Kennedy (Ex. Order 10925). Under President Kennedy, and later Johnson and Nixon, the equal opportunity concept included taking affirmative steps to achieve equal opportunity (through affirmative action).
So in urging the government to take some sort of action to remedy discrimination, the concept of affirmative action is the result.
I think it's very much in keeping with the Civil Rights Movement to continue to press the government, universities and companies to continue to use affirmative pro-active measures to ensure diversity, to address their own history of discrimination, and to prevent discrimination.
The Civil Rights Movement has changed a lot because it has become a more diverse coalition of organizations. Obviously as evidenced by our coalition of different groups serving different constituencies we have come together and realized that the best way to prevent discrimination against anyone of us is to join together and call for the end of discrimination against all of us. Affirmative action is a part of that process. We are calling for efforts to be made to reach out to women, to people of color from different backgrounds to ensure that diversity. Because that is what America is. We are trying to promote the same thing that America says that it is about - which is providing opportunity for all.
In Motion Magazine: You said "and now to promote diversity". Is that a change in emphasis?
Ayanna Hawkins: I think that the promotion of diversity is not necessarily a change, it's an extension of preventing discrimination. In the past, when affirmative action was first enacted it was a remedy for discrimination that was going on, legalized discrimination. What has happened now is that it's to prevent discrimination. Preventing discrimination and promoting diversity are two sides of the same coin. You are preventing discrimination against other groups. Affirmative action is not just a black and white issue. It's an issue that deals with the future of America and America is not just black and white. It encompasses people of different racial backgrounds, different ethnicities, different cultures. We are trying to promote the idea that you want to prevent discrimination against future groups, against other people, and in doing so you are promoting diversity.