O'Connor's 2028 Vision

In her majority opinion in the University of Michigan Law School “affirmative admissions” case, Justice Sandra Day O’Connor wrote that in twenty-five years affirmative action should no longer be necessary to achieve a diverse student body like the one the university aspired to by using racial preferences.

Under the Supreme Court’s prevailing equal protection jurisprudence, race may be used in decision making only to serve what is known as a “compelling governmental interest.” Over the years, the Court has identified two very limited compelling interests that satisfy the equal protection clause of the Fourteenth Amendment: using racial preferences as a remedy for past discrimination, and using preferences to create a diverse student body.

Justice O’Connor’s announcement of a twenty-five-year half-life on affirmative action implies that, if we continue the use of racial preferences over the next two and one-half decades, all will finally be equal. The deck will no longer be stacked against one racial or ethnic group or another. We all will compete on an equal footing. We will all have a fair shot at the American dream. No one will be disadvantaged because of race, national origin, sex, or by any other stereotyped factor.

According to this twenty-five-year timetable, the remedy for past discrimination will be complete in the year 2028. All college and university classrooms will be a model of diversity, reflecting with mathematical precision the racial and ethnic makeup of the applicant pool. After another twenty-five years of using race or national origin as “plus factors” in college and university admissions, student bodies nationwide will finally be totally balanced. After another twenty-five years of setting goals and timetables for hiring and promotion of minorities and women in public and private sector employment, true equality of employment will be achieved.

As we count down the years toward 2028, expert statisticians will continue to conduct multiple regression analyses of employment numbers to determine whether discrimination persists in hiring and promotion patterns. As the countdown continues, government agencies will continue to monitor government contractors’ commitment to their affirmative action goals, and equal opportunity agencies will continue to monitor EEO-1 reports for signs of disparities in hiring and promotion rates for minorities and women. As the countdown reaches 2027, “total equality eve,” human resources professions will be closely examining workplace demographics to determine whether all remnants of evil “glass ceilings,” and “sticky floors” that impede promotion and job advancement finally have been rooted out of American industry, as promised by Justice O’Connor’s prophecy.

The year 2028 will be momentous for other reasons. It will mark the final dissolution of the U.S. Department of Labor’s Office of Federal Contracts Compliance Programs, which monitors the affirmative action plans of federal contractors and subcontractors. With the achievement of total equality, and perfect diversity in American industry, corporate affirmative action officers, managers of diversity, and vice presidents of workplace diversity, and the like will no longer be necessary. These jobs will be eliminated, along with entire affirmative action departments in Fortune 500 companies which had maintained strong corporate commitments to affirmative action and workplace diversity over the years.

It all sounds so simple, so perfect, this total equality in 2028. And, it sounds so much like what writer Kurt Vonnegut predicted in his 1961 short story “Harrison Bergeron”:

The Year was 2081, and everybody was finally equal. They weren’t only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211^th, 212^th, and 213^th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.

But, I’m not so sure that setting a total equality timetable is at all realistic—whether it’s Justice O’Connor’s 2028 or Vonnegut’s 2081. Affirmative action and the use of preferences and minority set-asides have become a cottage industry in this country. Hundreds of thousands of human resources professionals labor in the vineyards of affirmative action. Comparable numbers of employment lawyers, HR consultants, statistical experts and affirmative action specialists have devoted their entire careers to workplace diversity measures.

A generation of Americans have worked their entire lives in a corporate environment with goals and timetables for hiring and promotion of minorities and women, race and/or gender as “plus factors” in employment decision-making—in short, the systematic, institutional use of racial and ethnic preferences in the workplace. Now, the Supreme Court has blessed the use of a racial preference “thumb on the scale” in the college admissions process, at least for now, and presumably until 2028.

Over the past four decades, enforcement of equal employment opportunity laws, affirmative action mandates, and minority set-aside programs have resulted in dramatic employment gains for minorities and women at all levels of American industry. Workplace demographics today reflect a rich diversity totally opposite the dominant white-male employment picture of the 1960s. But, with all this admirable progress toward our national goal of true equal opportunity behind us, it remains to be seen whether we as a nation can ever fully be weaned from our forty-year dependency on affirmative action. Justice O’Connor and a majority of her fellow justices seem to think it’s possible. Stay tuned, 2028 is just around the corner.

Opinions expressed do not necessarily reflect those of the Hudson Institute.