I am pleased to introduce tonight speaker Professor Emeritus at virginia, the university he chairs the History Department the editor of a five volume collection of letters as well as the author of dissent of the Supreme Court and the nations constitutional dialogue the lies in the state for affirmativeaction is part of the national dialogue. Many of us have struggled to explain the policy and how it works. In his new book the affirmativeaction puzzle traces to through the present day with Historical Context how affirmative action takes on racism. On the cover Orlando Patterson rates it is a comprehensive account for this nonwhite version of affirmativeaction and in the challenging historical task that no other issue divides americans more it is meticulously researched and honestly crafted work to draw their own conclusions about the value of this experiment. Please join me to welcome Melvin Urofsky to harvard bookstore. [applause] thank you. As a historian my mentor always told me to start with a story. Here is a story. In an Eastern European villag village, two peasants got into a fight. They couldnt resolve the issue between them and one of them said lets go to the rabbi. Whatever the rabbi says will be the solution. The other one says that is good. I trust the rabbi. And he says myours out h son, you are right. He leaves in the second president comes in and pours out his heart and the rabbi says my son you are right. At which point the rabbi who is been sitting there saying you both told both of them they are right and he said you are right also. And that is affirmativeaction. To know that i was conflicted a part of affirmativeaction that i like and there are parts that i think are not good at all. This would have been an easy book to write if i had just stuck with the Supreme Court cases. It would been one tenth of the size and i would have been done a long time ago. But i had to do with a lot of things. So if you look at the table of contents and the court cases there are jews and blacks divide with women of affirmativeactio affirmativeaction, the reagan presidency. Kennedy and johnson the eeoc completely ignored the 1964 Civil Rights Act. Its a very complicated topic. I cannot promise you will understand it any better i hope when you read the book it will come out a little more rational but there is no happy ending. In fact there is no ending at all. And the sponsor of the students harvard one in the District Court with the appeal of the First Circuit court of appeals. However they decide that the harvard wins or loses there will be an appeal to the Supreme Court and they are hoping now that those justices have been appointed that the court will finally take his side. There has always been some form of affirmativeaction. But that affirmativeaction initially was designed to help it is quite clear that is what the registration said and that is what the bureau and others they help the former slaves to get land and money and food. But then as timed on time changed it shifted from helping africanamerican people to helping white people and it was like that for a long time. Taking a look at the new deal measures, not only discriminated against blacks. The g. I. Bill for example although many white people had no trouble to get that to pay for their colleges blacks had to work extra hard and right after the war a lot of places still were not taking black athletes. They so overwhelmed the traditional black colleges that congress had to pass a special measure to provide more money for those to take care of the rush and in terms of the g. I. Bill for housing , the federal government not only encourage redlining among bait one among the banks that some black veterans could purchase houses under the g. I. Bill very few were. So in 1954 the beginning of the Civil Rights Act come i shouldnt say the beginning with the Civil Rights Movement kicks into a higher gear. In january 1961 he knows he is not happy about this. That he will have to deal with that kennedy first uses the term affirmativeaction and kennedy proposes the bill that Lyndon Johnson will strengthen and expand into the landmark 1964 Civil Rights Act. Now, the Civil Rights Act specifically said there could not be quote is. What we have with the kennedy and johnson proposal is what i have termed in the book soft affirmativeaction. What it means is simply once you remove the legal barriers and make discrimination against blacks and other minorities illegal, then the assumption was that the doors would open and people who were discriminated against can now walk in and apply for jobs and get into good schools. No quotas. People would get in on the merits. It didnt take long however before they realize this would not work. Is an address to Howard University johnson said in effect you cannot take a person who was been chained up for years, strike off the chains lead him to the beginning of the race and expect that to be a fair competition. You have to do something more. What that was, johnson never really spelled out. But the idea of a soft affirmativeaction in which people would be judged on their merits with no legal barrier barriers, everybody except big it could favor even critics of affirmativeaction have gone on record to say that was a type of affirmativeaction the country needed but what happened later they became bitter critics. The Civil Rights Act of 64 set up the equal Employment Opportunities commission and if ever there was a story of an Administrative Agency and a bunch of bureaucrats to run wil wild, that is the eeoc. Let me quote 11 staff member said when asked about the anti quota a portion of the 64 Civil Rights Act. The hiring provisions of title vii are a big deal they dont mean anything to us. The amazing thing is they got away with it. And that started to move away from other affirmativeaction of doing a by the numbers so there was a lot of pressure. One of the pressures was that africanamericans at the time were not prepared to go through the doors even though they were open they were still the victims of thirdrate schooling in the south still the victims of job discrimination very often if you want to get a job i was a janitor because in many places that was the only job that they could get at the time. So the facts on the ground is that while soft affirmativeaction did not violate any law and sounded good it was not going to work all by itself. It needed something more. Believe it or not a person that gave it something more was Richard Nixon called the philadelphia plan. Im sorry George Schultz was behind is the secretary of labor there was millions of dollars in the philadelphia area and if you have been down to philadelphia there are several museums, the internal Transportation System what they told the contractors and the unions was if you want to get the money and be a federal contractor, you will have to hire minorities. The contractor said fine. How many . Because employers like to work by the numbers so give us a number. We will do it. The problem was they all had contracts with the labor union who said you cannot do that. The Labor Department insisted from the court case the Federal District judge that the record of the labor unions was so terrible that Something Like this was needed. The Supreme Court refused to take the case. This is where we began to get hard affirmativeaction by the numbers that we take this many or that many. One of the big problems is universities. Most of you will understand what the eeoc that universities are not like manufacturing businesses. In terms of students we have a turn over every four or five years in University Class comes in four years later most leave and are gone. But otherwise it takes 40 years to turn over the eeoc kept pushing for colleges to hire more people but it doesnt happen that way now harvard by the way when this started when nixon was president harvard had one tenured woman professor and a chair specifically designated to be held by a woman. This was 1973 roughly. But all of you should be familiar with this. All people and academia no jobs dont last long and then you move on but then you get to a place if you do well by the time youre 35 maybe you publish a book or two, if youre a good teacher or colleague they will vote you tenure. And then my son says unless you screw the pooch you will be there until you retire. So how can you add people when you already have a full load . And there are no people too bad . Duke university was told they had to hire an africanamerican economist into their department. But the problem that year of all the graduate programs in the United States only three africanamericans earned a doctorate in economics. Would be a long time until there would be enough people to begin to fill the hole. Now some colleges try to use affirmative action as a means for compensation for past discrimination primarily among africanamericans and then later against women or latinos or people with disabilities. There is a widespread belief that the people who benefited most from affirmativeaction were white women. Now white women went to the same schools private or public as their brothers, the same cultural opportunities, they often got better grades than their brothers and wants schools went coed, they had no problem they had the credentials to do this. Black women on the other hand also at the same schools as their brothers and these were the thirdrate schools we all learned about ever since brown. Alexis de tocqueville was a french traveler who came here during the jacksonian era in the 18 twenties and thirties marveling at the vibrant democracy he noted in america all major issues get resolved in court rather than on the street streets. And that has been true ever since we expect the courts to resolve many of our issues. Brown the board, the desegregation of the schools although roe v wade is still controversial it certainly helped move along the womens rights movement. The court spoke a few years ago now samesex marriage is legal in every state in the union. But not every issue gets resolved so easily. And one of the issues that has not been resolved by the court is affirmativeaction. Now the first case the court heard so i want to read two quotes. This is the first part of the program. Just bear with me. Number one the key to the problem is the consideration of each applicant in a racially neutral way with that old metaphor of what happens coming to america is about design of the marginalized people and a figure of speech that picks the diversities by the first amendment. Minorities in our midst who serve actively in Public Affairs to be chosen a character alone not on cultural orientation. The purpose of the law school not to produce black lawyers or jewish lawyers or irish lawyer lawyers, it should be to produce good lawyers for america. Quotation number one. Here is number two. It is plainly true in our society blacks and separatist in the nation are immeasurably greater than any directed. But those who believe racial preferences can help to even the score to reinforce a manner that was a source of the injustice and to be the source of more injustice still not that it was blacks or jews or irish to be discriminated against but individual men and women created equal who are discriminated against and the resolve is that it should never happen again. They show preferences to even the score in a small debate one of the proposition of society is appropriately viewed racist to make it right that the injustice in the past to a black man should be compensated for by discriminating against the white. Who said that . Guess is . Who said the first one . William o douglas. One of the most liberal justices of the 20th century. One of the things i try to show in the book is that opposition to affirmative action is not cut and dry were all the conservatives are against it those are forward it doesnt work that way. There are a lot of liberals who have a great deal of trouble. The reason that they do that unlike europe now it is true there have been amendments i gave the two black sand 18 yearolds but the 14th amendment does not say it will not deny any group of equal protection of the lots is no state shall deny any person equal protection of the law our rights have always been individual. We have never signed on to documents providing group rights. We have avoided for the most part, the Group Massacres like after yugoslavia fell apart. But this is one of the things that has been part of the problem where liberals who otherwise might be expected to export affirmativeaction have real problems with it. So the first case that came along where the court actually went someplace was the university of california davis founded a medical school and took it 100 people every year reserving 16 of those spots. Now in california minorities are not just africanamericans but also hispanics. Allen and law school served in the military and was in the States Program and wanted to be a doctor and had a lot of trouble they told him he was too old. He was 31. But then he discovered the school he wanted to get into because it was near his home he had higher scores on boards and others than any of the other 16 people in the Minority Program that were taken so he sues and eventually goes to the Supreme Court and we get one of the strangest decisions and the entire court history. For members of the court believe that race could be taken into consideration in a benign manner so it does not violate the 14th amendment or the Civil Rights Act. For members of the court believe taking race into account does violate the 14th amendment and the Civil Rights Act and in the middle was a gentleman from virginia who came up with an opinion that said race could be taken into account provided it was part of the holistic application and pointed to harvard the way this would be done and got four more votes. But that said there could not be quotas and that he got the other four votes for that opinion so we have a four one opinion that his is essentially that will determine affirmativeaction for the rest of the time its enforce. So even more important affirmativeaction case came up shortly after that brian weber he worked for the Aluminum Company alcoa that was going to try to provide training for those on the lower rungs to have the skills to move up. He wanted to be in that group. But the union has signed the contract with alcoa. Essentially to say a certain number of spots in the Training Group would be reserved for minorities. Brian weber goes to court and in the opinion by justice brenna brennan, the contract is upheld. Now the reason this was important, the 14th amendment does not apply to private business just government, state or federal. But this said private businesses could have affirmativeactio affirmativeaction, and they could take race into account and as long as they didnt discriminate entirely which did violated federal law, they could have affirmativeaction plans and they do today. Nearly every big company has affirmativeaction plans and they have it for a very good reason. In the Washington Area you cannot go into a bank without finding at least one spanishspeaking teller or person behind the desk. And as one person said working for a west coast bank part of our business consist of hispanics they will not come to us unless we have people who look like them and can speak their language. That just makes good sense for higher one rest of higher those who speak spanish. Now then the court went on to strike down several plans such as michigan and virginia. And what they did, they decided any statesponsored plan that took race into account even in the benevolent manner had to be treated the way they would treat anyway space with scrutiny. That is a hard level to meet. And then the universities changed the rationale. It was a source of remediation to be a need for diversity in the classroom. If you ask me is diversity in the classroom important . They will say it is. I learned that years ago. One of my first teaching job so that Ohio State University in columbus the summer before i started that job a friend and i were at edmonton where he taught american history. I worked very hard because i wanted to take those and use them when i got to ohio state. One day i was talking about the great depression. I have a lot of stories that i thought i had done a hell of a good job. And as usual i stopped five or ten minutes before and said are there any questions . Universities at that time allowed senior citizens. There was an older gentleman there who hadnt said anything but now raised his hand to say sonny, that was pretty good and then for the next 15 minutes he had the place spellbound telling them personal stories of the depression. After that i had no doubt diversity in the classroom was a good idea. But what type of diversity do you want . This current thing about harvard i wrote a little piece of course they have been discriminating for years. Try to remember the word discriminate has two meanings. One is to be prejudice or only having a discriminating taste which it is a positive. I went to columbia. When i was there before women were allowed my entry class was 650 students as i learned as a graduate student working in the office, when applications came in they were put into one of three piles. One is the five borough of manhattan, second a radius of 50 miles of new york city to take in the suburbs in connecticut, westchester and new jersey in the third pile was the rest of the world. I was in the third pile because i lived 100 miles from new york. Columbia did not want to be a new York City School and they easily could have filled the entire class from the bronx so they filled up one third of graduates from the bronx. But that was only the first part. Columbia had a football team. Not very good but then harvard was a very good either the reason is Ivy League Schools dont give athletic scholarships you needed somebody to put out there or the Basketball Team or the Baseball Team or tennis or debate they ran a Student Newspaper that solicited ads to put out a paper five days a wee week, the spectator. And a whole host of other Extracurricular Activities including a drama group. How do they get these people . If you took just the people with the best scores in gpa you would have a wonderful cast but not a single tennis player or person who has a right to a newspaper. So while they go through the three different piles stars will be put here he plays baseball or he does this. I didnt do athletics i did other stuff but the recruit coach came up to me and said you will roll crew show up a bigger field tomorrow. Is 18 years old he showed up and i showed up. I didnt last that long. There is a number of problems that have to do with affirmativeaction and universities. But the number of schools that are actually involved or no more than four dozen in the entire country. You have Ivy League Schools and private schools such as stanford on the west coast. These are the crumb democrat where everybody wants to go. The rest of the schools take everybody. And its true. So most of the debate over who gets into college is limited who gets in to the tier its a very small tear of the best schools in the country. Now, one of the things i found out is that an even bigger problem is legacies which are a big deal in places like columbia and harvard that depend upon donors to build up the multimillion dollar endowments. George w. Bush got into yale. He did not have good they took him because he was from texas with affirmativeaction he got into yale because three of the five members of the Admissions Committee were members of skull and bones where his father and grandfather had belonged. Once he was in yale, he had a mediocre record. Not an outstanding athlete, not an outstanding scholar, and graduated in the bottom fifth of his class with a c average that was elected president in the first year hes president he goes back to yale and says now i want to talk to you see letter students i was a see student this proves you can become president of the United States. Which he did. The real question that has to be asked, did affirmativeaction work . It certainly works for some people if you ask Clarence Thomas he will say it didnt help him at all and not only that harmed him. I saw one thing that said the majority of students of color in american schools are foreign a number of those i get from africa and the third world the number of affirmativeaction students. I dont know if thats true or not but there are all sorts of reasons people get into schools. May be color, maybe talent, grades, where they are from geographically, if they could play football, we dont know. And certainly let me finish up with just a few words about the current lawsuit against harvard. Apparently the same person has been running the Admissions Office for two or three decades. Heudge said were not quite sure what they do their so the problem here is that but it seems to be working. The ratio percentage of asianamerican students has remained pretty much the same for a very long time which would indicate there might be a quota. The court did not find that they were active pursue already filed an appeal in the First Circuit and hopes to get to the Supreme Court. With the addition of neil gore search one Justice Gorsuch and Justice Kavanaugh we dont know what will happen he took word from scalia and may be a little more conservative than he is and of course scalia was opposed to affirmativeaction. Kavanaugh took over from Anthony Kennedy who initially opposed affirmativeaction. But in 2013, he was the deciding vote in the fisher case that says diversity in the classroom was a compelling government interest and that the texas Schools Program could be upheld. Kavanaugh is more conservative by far than kennedy. Neither one of them heard affirmativeactions heard those and they run the Circuit Court so we have no idea how they will vote. And that is a puzzle. I am fairly sure that this case will get to the Supreme Court. You only need for to make a case with the Supreme Court and i have no doubt there will be four people willing to take this cas case. But what happens is a strong line of precedents supporting affirmativeaction that all of those were extremely close decisions five four, six three but five four for the most part and i will end with a comment from Anthony Scalia asked the president to overturn. Thank you. [applause] any questions . Are we at a point in this country were some affirmativeaction can be reversed . It wont be reversed in the private sector. There is a story that i thin think, affirmativeaction in some places was done right. Reynolds metal the Aluminum Company was headquartered in western virginia. And its a family owned business. Reynolds has been bought by alcoa but this was in the seventies and they were a very socially conscious family. And one day they said we are as guilty as anybody else if we look at the workforce and professional staff are all white the only people of color we have are in the basement doing the grunt work. So they went out and hired an africanamerican man and told him you have one job only. Recruit qualified minorities. So he goes out the first year to the job fairs that are held and he sets up the table with signs and he notices that every africanamerican walks right past. Finally he stops and says why dont you stop . I have jobs. Says reynolds doesnt higher black people and he said they do now. Finally he gets a couple of them to apply, they have the qualifications, reynolds has made it quite clear they wouldnt hire Somebody Just because the person was black they had to be qualified in engineering degree, and do the job. So they hired two or three the first year. The next year he takes them with them at the job fairs and when he stops black students walking by and they say reynolds doesnt higher and says these guys work for reynolds. Now eventually, after a number of years, they also told the white employees what they were doing and if anybody was a comfortable working next to black people then the pink slip is waiting for them. They are not putting up with any non census was self affirmativeaction they open the doors and actively recruited and nobody lost their job. Who was white. They hired on the basis of talent. And thats why in the private sector, it will continue. Now what has happened in those places like michigan and california saying you cant take race into account at all , the schools on those dates managed to find different ways. So we will go out and recruit people from poor families. Okay many are africanamerican. Were not taking them because they are black but because they are poor. So i think universities will find a way to keep taking people. For it to be declared unconstitutional. I dont think that will be the end. I have two questions. The first is that you mentioned the role of Richard Nixon in affirmativeaction without revealing his motives and what instituted that and the second part is a followup. Let me answer that first. The answer is simple because the democrats were supporting affirmativeaction so he wanted to drop drive a wedge which he did. There seems to be a certain contradiction of what you are describing that the Supreme Court will decide will have significance but yet you say basically within the social realm and the economic realm of the private sector which is a very private university you are describing if they say even declared unconstitutional. Even private universities first of all to the federal law first of all things have changed in the black community. Now there is a fairly sizable middleclass. There is a wealth gap between white and people of color but last year i gave a talk at Harvard Law School and i was amazed at the racial variety that i saw in the law school because they are all concerned about changing the seal of Harvard Law School. So i think there are a lot of ways to skin a cat and in california and in michigan that will continue to happen. And through public universities im not convinced despite theac with their own privilege makes the not want to touch it. This is the case right now. The state universities are working two cases one was the Michigan Law School case and the other why is the fisher case and both of those the court upheld diverse city as a governmental interest. So asianamerican students are not counted as a minority. When california was doing things among those minorities Asian Americans were not listed. I dont know what will happen to the harvard case except i think it will go up. Once it is there you are right. I would think the beneficiaries frankly. There is a black woman attorney who wrote the oped in the Washington Post that i found very interesting she was very grateful for that and did well and now she is with a highpowered law firm in washington. And she is very conflicted here. On the one hand her son word benefit with the legacy but then philosophically opposed she is not sure what her son goes to apply in two years what will happen. So there are all sorts of things that have happened. And then to research and conclude that the societies that are diversified and doesnt perceive the homogeneity that should be the same as you. That the diverse societies will fail . Yes. Should be the same as you are was some cohesion but if there is no cohesion. The United States has always been diverse from the time we were founded. No. Yes. Yes. Right now we tend to forget the religious differences that existed at the time. We were not a home homogeneous country. Actually we were becoming less. Another question. There are things you like about it and things that you dont i am not sure i heard what they are. I like the soft form of affirmativeaction. I dont like quotas. I think the soft for one four where you get good people in but after you recruited come youve got to have good people for the requirements of a job or getting into school. While doing research i ran across god knows how many stories with no reliable data. They hired a black woman. She says up front. She is a woman and black and answers the phone and smiles it is a two for. That was a common story how companies were taking the minorities there is no Solid Research to back that up. Most cannot afford just to hire somebody for looks. And at this point they dont have to. Just because a latino works in the bank doesnt mean she is the affirmativeaction higher. She could have been hired because she speaks spanish in the spanish neighborhood. The guy in a wheelchair may not be affirmativeaction higher he could be a veteran. And the black lawyer may be there because he was on harvard law review and happens to be damn good. Just because they are people of color or disabilities or women at this point we cannot tell just by looking and assume they are affirmativeaction people. I was curious. I am interested that you said you dont see that to be a way for anyone in the private secto sector. So i am just wondering and i am curious if you can speak to why the affirmativeaction are available at least rhetorically because they see their rightwingers invaded against of the rogue corporate culture. I dont see that it would be impossible for that. I am just curious about that. The way things used to work would be, say in a factory, a guy finds out the worker is retiring and now there is an opening. He goes home and tells his wife your sisters no good son i can get him a job in the factory tomorrow. And that is how a lot of jobs were filled in academia. When steve and i first started out who your sponsor was meant a great deal. There was a network to help People Like Us get job so originally it did not include people of color. And that yale a male only establishment we may have to hire women but we dont have to listen to them. At this point you have enough people of color working in different places with a large enough black middle class that they are graduating qualified people who can go and apply on the basis of their abilities and not just their color. But we still have the philosophical problem that is at the heart of the legal problem. We dont have group rights. We have individual rights and affirmativeaction sets up a paradigm. That offends a lot of people. Thank you all. [applause] now think of smallpox, measles, those all started during the agricultural revolution when people came to gather. And spreading disease from person to person. That is when for the Infectious Diseases everybody has their own story but when rodents that were carrying smallpox and then the virus made the jump causing smallpox in the same thing with measles. So now fast foraging to the Industrial Revolution and the actually does due to Infectious Diseases spread person to person and a lot of enthusiasm that occurred on the 20th century with vaccines and antibiotics we are done with this problem now just put a shot in their arm and they will be all better. If thats true we would not be having this conversation right now. Even though were taking on a lot we have this emerging Infectious Diseases there are a lot of factors that drive this. So some of the key factors collectively on somebody who thinks they are smart to have multiple generations a generation and 35 years microbes no problem at all theys get smarter all the time thats why we read about these drug resistant microbes. And they said this will protect me from the set of antibiotics and i you have superbugs so humans change their behaviors to 100 years ago nobody had a kidney transplant so we change our risks to infection so we also change our environment. This is a big driver. But should not be surprising talking about evil the animal connection comes into play. With the bola it is thats it infects somebody and then it is the chain of transmission and humans. 75 percent of these is that you hear about the new emerging to diseases are zoonotic it is an animal infection if you force people into the environment into the jungle from the jungle they get infected and that disease has the potential to cause person to person transmission that we see from mers and that is from camels or bats. That is not a surprise that does not come from south america or parts of Southeast Asia where you have a lot of connection with the animals. Bird flu is another good example where you have people in china and other parts of Southeast Asia who live very close to their pigs and birds and foul and chickens and this is a great opportunity for the virus to swap genes and then becomes a global pandemic. So there are some set of environmental conditions and why do we keep hearing about them. After words
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