Affirmative action has been the subject of debate for decades. Is it legal? Does it work? Do we need it? It is no surprise that the conflict remains unresolved. An unusual aspect of today’s debate, however, is that the battle lines have become less clearly drawn. Opponents of affirmative action can no longer be dismissed as conservative, overtly racist proponents of white male supremacy and “Jim Crow” segregation. In an Orwellian twist of fate, important and respected public figures have begun to challenge the direction and ideology of the civil rights movement. Asserting claims of morality and justice, these figures have charged traditional civil rights groups with losing sight of their appropriate goal – equality. Affirmative action’s new opponents and revitalized old adversaries rely on two major themes: (1) affirmative action benefits minority members who have not themselves been victims of discrimination and (2) affirmative action injures innocent majority members. Acting on these premises, former allies of the civil rights movement such as the Civil Rights Division of the Justice Department and the United States Commission on Civil Rights have joined in a campaign to eliminate race-conscious relief for discriminatory practices. They have declared that race-conscious relief, in spite of its necessity, is illegal. In 1983, for example, the United States supported a petition for certiorari which sought to overturn the City of Detroit’s decision to adopt an affirmative action plan for its police force. The government brief stated:
We do not believe that this [plan] can be sustained under the relevant statutes; nor do we believe the City’s decision here can be squared with the Constitution notwithstanding the fact that the City’s action was expressly made as a response to undeniable past discrimination against blacks that had created a police force that was largely unresponsive to the concerns of a substantial portion of the City’s population.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.
Labor organizing privilege is not a magic bullet that will secure the rights of workers to organize and collectively bargain. Employers will continue to resist the efforts of their workers to organize.