Questions & Answers with Professor Carl Livingston on Affirmative Action
The Supreme Court overturned using race in college admissions recently. 25 years ago, Seattle Central political science professor and lawyer, pastor, author, and community activist Carl Livingston wrote a piece in the Howard University Law Journal warning that affirmative action would come to an end if the civil rights community does not work to save it.
We interviewed Professor Livingston and asked him to reflect on his work in light of the court's consequential decision to end affirmative action.
Please introduce yourself to our campus community.
I am Carl Livingston, lead professor of Political Science at Seattle Central. I started first as an adjunct in 1989; then Business Department Dean Nobie Chan hired me to teach Business Law when I was an associate with the law firm, Ulin, Dann & Lambe. Humanities & Social Sciences Dean Dr. Rosetta Hunter hired me full-time in 1990. Incidentally, our campus art gallery is named in honor of Dr. Hunter. This was also during the days of President Dr. Charles Mitchell, namesake of the Mitchell Activities Center (MAC). From the first day I started, I have enjoyed teaching our students, serving our campus learning community, and writing on matters of justice.
You published a piece in Howard University’s Law Journal in 1996 titled "Affirmative Action on Trial: The Retraction of Affirmative Action and the Case for Its Retention." Why did you write it and why is it important today?
I wrote "Affirmative Action on Trial" because conservatives behind people like Ward Connerly and Shelby Steele were moving to end affirmative action. To be honest, there was a second reason as well: I wanted to write something scholarly that very few of my colleagues could write, and something that was so topical, to shore up my credentials and promote Seattle Central’s Political Science Department.
"Affirmative Action on Trial" is important because it was a warning that if the civil rights community does not work much more to save it, affirmative action will end. On June 29, 2023, that 25-year-old warning largely came true, to the great dismay of those who care about civil rights for all. That was the day that U.S. Supreme Court overturned using race in college admissions in a case entitled Students for Fair Admissions v. Harvard College. Because of this case, many people of color are set to lose college admissions, financial aid, hiring opportunities, employment promotions, and contracting opportunities. The ramifications are immense; their pain will be profound. We have as a model in the State of Washington all the pain that beset Black and Brown Washingtonians after I-200 in 1998 (filed by Tim Eyman, I-200 prohibits discrimination and preferential treatment to any individual on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting). For those who have studied the money lost and the communities impacted - for those who care - it is a data presentation of brokenness and despair.
What is affirmative action and what was its original intent?
Affirmative action is "remedial programming to fix the effects of past discrimination." This is its original definition that stood from about 1971 until conservatives were able to redefine it in the 1990s. Now, the watered-down definition is "preferences based on race or sex." The intent of affirmative action is within both the words of the original definition, and it is in what courts do every day, across the country. For, when a person injures another, that person owes a remedy in proportion to the injury the person caused. Every day, courts across the country impose remedies where plaintiffs prove some defendant injured them. Well, segregation and discrimination from 1877 to 1970 injured people of color profoundly. As a result, justice demanded "remedial programming to fix the effects of past discrimination."
Affirmative action is the name for the "remedial programming" put in place starting around 1969. What kind of remedial programming am I talking about? It is the sum of using race as a factor in admissions, in financial aid, in hiring, in promotions and in contracting; greater licensing opportunities for people of color in radio and television; and the busing of students of color to better schools. Affirmative action has been the summation of all these different items. In other words, for 50 years we did a collection of light but extensive programming as compensation to those who were heavily discriminated against for 100 years. A good society must ask this question: Have we provided those we injured a remedy in proportion to the injury the society caused? My answer is, "No! We have not even come close to doing so." What is your answer?
How and when has affirmative action expanded and retracted?
Around 1971, Richard Nixon’s Assistant Secretary of Labor, Arthur Fletcher pushed on a military project a diversity contracting program in Philadelphia, Pennsylvania. After the diversity contracting program won its first lower court case challenging it, Fletcher did not wait: he pushed this "Philadelphia Plan" nationwide, putting its language in every federal contract on his desk at the time. By 1971, busing was in place, as was using race or sex in contracting, college admissions and employment on many jobs nationally. This was the big year of expansion for affirmative action. Affirmative action expanded until the Regents of the Univ. of California v. Bakke case in 1978. Then came Ronald Reagan. Progressives were not even ready for the multiple fronts from which the Reagan administration led the nationwide conservative fight against affirmative action. Reagan conservatives fought by crimping civil rights programming, cramming the courts with conservative judges, criminalizing certain communities to detain them instead of developing them, and championing a capitalism that curbed the welfare state as well as unionization. All these things negatively impacted affirmative action, and really the progressives were not ready for any one of them.
Reagan turned the Attorney General's (AG) Office, the Equal Employment Opportunity Commission (EEOC), and the U.S. Office of Civil Rights (OCR) in a 180-degree direction: instead of being offices ferreting out discrimination and promoting fair diversity, they became offices mostly looking for reverse discrimination and leading the case against affirmative action federally. Conservative presidents thereafter simply followed the Reagan playbook. In the AG’s Office, the EEOC, and the OCR, Reagan put minorities, especially anti-affirmative action African Americans (like Clarence Thomas) in key positions. These minorities were the point persons making the decisions so that conservatives could argue "this has nothing to do with race." It was masterful … in a horrible way.
When Clinton was in office (1993-2000), conservatives mounted state campaigns to begin the end of affirmative action, since they had conservative majorities in many state legislatures and on most courts, including the US Supreme Court. With a 6 to 3 ultra conservative majority currently on the US Supreme Court, the conservative group Students for Fair Admissions began looking for the perfect case around 2020. In 2023, the Court gave conservatives what they ultimately wanted, the end of affirmative action for race.
What is the basis for the Supreme Court consequential decision to effectively overturn the use of affirmative action in college admissions?
The basis of the decision is the Court held that admissions programs at Harvard and the University of North Carolina lacked data showing both current discrimination, and that their programs were specifically targeted to fix the effects of that discrimination. Thus, the Court concluded that there was insufficient warrant for these programs to get around the Equal Protection Clause which prohibits treating people differently based on race. The Court said it this way, "Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause."
What does this ruling mean for colleges across the US and in Washington State? Will Seattle Central College be affected by this decision?
Because of this case, many people of color are set to lose college admissions, financial aid, hiring opportunities, employment promotions, and contracting opportunities. The ramifications are immense; their pain will be profound. SCC will be affected. As I-200 negatively impacted Black and Brown Washingtonians, so too the Students for Fair Admissions case will negatively impact the Black and Brown area demographic from which SCC draws its student body. This will worsen the phenomenon I have seen and few of spoken about at SCC: I have seen that since 1990, SCC’s enrollment of ADOS students (Africans who are the Descendants of Slaves) has woefully decreased. Many of the African American students at SCC are East Africans. While that is good, who is controlling for the group of African Americans whose parents and grandparents put their bodies and lives on the line to get the affirmative action laws in the first place? Who speaks for them? Because of the Students for Fair Admissions case, it will be harder to retain ADOS, first generation African Americans, Native American, and Latino American students.
Justice Clarence Thomas wrote in his concurring opinion of the court majority that Affirmative Action policies "fly in the face of our colorblind Constitution." And that, as stated in the Constitution, "all men are created equal, are equal citizens, and must be treated equally before the law." Is the Constitution colorblind? Is race irrelevant in law and life?
Well, Justice Clarence Thomas is a flawed vessel to use as an authority on race. First, when Reagan placed Thomas over the EEOC, Thomas showed his conservative bona fides by delaying the administrative hearing and determination of most of the complaints filed with his office. It was arguably criminal to progressives; to conservatives, he was a hero. Moreover, Thomas received affirmative action at least twice in his career: in the seminary he first enrolled in (and later left), and then in Yale Law School, which a law school dean confirmed. Unlike Thomas, I could never kick away the ladder I used to climb up. Justice Sotomayor agreed with this in dissent to Justice Thomas, "the three Justices of color on this Court graduated from elite universities and law schools with race-conscious admissions programs, and achieved successful legal careers, despite having different educational backgrounds than their peers."
In the lack of opportunities of his day, Thomas struggled getting a law job after graduating law school. But Republican Senator Danforth found out about Thomas and began to mentor him during Reagan’s presidency. All of this has to "color" what Thomas says about the Constitution being "colorblind." To this Justice Brown Jackson stated: "But the response is simple: Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented 'intergenerational transmission of inequality' that still plagues our citizenry."
Former Justice Sandra Day O’Connor, the first female appointed to the Court, wrote in 2003 that at some “future point,” affirmative action programs will have to end. Has that time come now?
It has apparently come to an end, so far.
What can we do now?
Colleges (and any other entity seeking to protect affirmative action programming) should quickly pay to have a professional do a disparity study in their area. They can use the California firm that the Washington State Department of Enterprise Services used from 2016-2018 to do the large disparity study it completed. Should that study confirm current disparities and discrimination, then colleges (any other entity) should narrowly tailor their programming to fit the findings of the disparity study. That consulting firm can also help craft the programming.
All entities seeking to regain affirmative action should support both Prof. Angie Maxwell and me in promoting scholarship showing that there is current institutional discrimination in place since 1970. I am working to complete a people’s book on current discrimination entitled, "The Playbook: How Southern Strategy Discrimination Has Affected My American Family" (Classic Day Publishing, set for 2024 release). Acceptance of this scholarship is a sea change given that the Court bases its arguments on the inability show to any pervasive societal discrimination since 1970. Scholars like Maxwell and I need all the institutional support possible.
Where can I read more?
To read "Affirmative Action on Trial: The Retraction of Affirmative Action and the Case for Its Retention," follow this link.