Interview with Shirley Wilcher
Civil Rights Since the 2003 Supreme Court
Affirmative Action Decisions
-- Combating Circumventions and Political Interpretations --
Shirley Wilcher: I started when I worked as a clerk for the NAACP Legal Defense Fund, during law school. I was there in 1978 when the Bakke decision was handed down. When I left law school, I joined the National Women's Law Center in Washington, D.C. and worked on issues related to affirmative action and women's issues. Then I went to Capitol Hill and was an associate counsel with the House Committee on Education and Labor during the Reagan years. There, of course, we did a lot of oversight regarding the enforcement of affirmative action and equal opportunity laws by the Reagan administration. This included working with the Equal Opportunity Commission when Clarence Thomas was the chair.
When President Clinton was elected I joined the Office of Federal Contract Compliance Programs with the Department of Labor. That agency enforces the affirmative action rules pertaining to companies that have federal contracts. Any company that has a contract of $10,000 or more must use affirmative action and cannot discriminate.
From there I went and joined, when the Clinton administration ended, Americans for a Fair Chance, which has since merged with the Leadership Conference on Civil Rights. Somewhere in between there I started Wilcher Global and we are continuing to monitor and to work on affirmative action issues. (http://www.wilcherglobal.com) One of the things I do is to monitor the news media and clippings regarding issues related to affirmative action. I send out a newsletter where I inform clients, and friends, and other associates about what is happening in the news. I work as a diversity consultant to organizations and to companies looking at their affirmative action and diversity programs recommending improvements and changes to promote an equal opportunity workplace.
Lastly, I work with organizations including Black Colleges, particularly public Black colleges in the South which are faced with having to diversify their student bodies via court order. There's diversity working on several fronts here.
In Motion Magazine: It's been about nine months since the Supreme Court decisions on affirmative action (June 23, 2003). What has been the impact of those decisions - directly on Michigan but also broadly around the country?
Shirley Wilcher: Well, colleges are looking closely at their admissions programs. Those that have used point systems, as the University of Michigan's undergraduate school did, are having to revise them.
I think, also, admissions programs are being affected. In some instances, I've read, the number of minority applicants is down at some public colleges and universities. (For example) Ohio State. And even at Michigan - at least the early results show.
However, another impact, I think even more broadly, is the impact on minority scholarships programs. I would call them enrichment programs: like a summer program to bring in minority students to help them prepare for the rigors of some of these selective colleges. Groups such as the Center for Equal Opportunity have actually filed complaints challenging the programs as discriminatory. That could have an even broader impact for those students who are admitted but who could use and need the extra encouragement and preparation because of the problems of attending high schools, and middle schools, elementary schools that have not prepared them properly for these kinds of rigorous programs. To me, that will have as great an impact if colleges capitulate to these demands and if they eliminate these kinds of programs.
Clearly also courts are beginning to apply the Grutter decision, which is the one effecting the law school where the court found that race could be a factor in admissions among other factors. That decision has shown up in cases even involving contracting where cities and states can have race-based programs -- as it relates to providing contracting and building highways or government buildings. The decision is having an even broader effect than simply in the higher education context.
In Motion Magazine: You mention the suits being filed against enrichment programs. Why would that come out of the Supreme Court decision?
Shirley Wilcher: The organizations that are filing these complaints are unhappy with the outcome of the Grutter decision and so they are taking a different approach.
They are arguing that under Title VI of the Civil Rights Act colleges and universities that receive federal funds cannot have summer programs or minority scholarships that are race-based. It isn't clear, I would argue, from the decision whether or not those programs are unconstitutional or illegal under Title VI. I don't think that issue has been clearly addressed. However, the mere threat of filing a complaint with OCR (the Office for Civil Rights) at the Department of Education causes some colleges to simply capitulate and admit everybody to those programs. I can understand, but it defeats the whole purpose of the programs. This is what happened at MIT (Massachusetts Institute of Technology), at Princeton. And other institutions are looking at their programs because of the letters coming from these conservative groups. So, yes that is what is happening.
One can argue on both sides whether or not Grutter allows for those programs, but I recall that the the General Counsel at the Department of Education in the Clinton administration, issued a letter to colleges stating that the then-Bakke decision allowed for minority scholarships, for instance. So my concern is that colleges need to consider whether or not it is timely to change those programs and whether the law clearly prohibits them. I think we need more analysis of the decision before they capitulate.
The reason why I mention this is I know when I was at college in the '70s, some of my African American colleagues participated in a summer program for math and science and some of them now are physicians and have graduate degrees. It would be regrettable if this generation of students lost the opportunity to get some extra help in preparation for the rigors of these selective college curricula.
In Motion Magazine: When the Supreme Court decisions happened, people saw it as a positive thing, although it was mixed bag, but you are saying there are more negatives that people hadn't really thought about? Or it's just being interpreted that way?
Shirley Wilcher: I think it's being interpreted that way. There are positives -- yes. Major positives in that colleges could continue to consider race among other factors in admissions. The Court confirmed and supported the Bakke decision, Justice Powell's decision in Bakke. That was the positive. But of course those who oppose affirmative action haven't given up.
What they are doing is to simply take a different approach. They've gone to the Department of Education which is part of an administration (Pres. G. W. Bush) that actually filed a brief against the University of Michigan. This is political as much as it is a question of civil rights enforcement. They've simply taken a different approach. It is not unexpected. And with the support of the Office for Civil Rights they are going directly to the colleges, saying, "If you don't change these programs we are going to file a complaint against you", which means the government will be in there investigating. This is simply the approach that they have used.
In Texas, which was covered by the Hopwood decision in the 5th Circuit that said that no college could take race into account in admissions, there are a couple of institutions that have decided as a result of the Grutter decision that they will go back to factoring in race. Rice University decided to do that. I believe the University of Texas at Austin. And the same organizations are criticizing those schools and filing complaints, or threatening to file complaints, with OCR again. What you have is those organizations attempting to circumvent the decision by intimidation and the use of federal enforcement agencies.
In Colorado, a Black state legislator has introduced a bill to eliminate affirmative action there. Fortunately, the Colorado senate recently failed to pass his legislation.
And there's one other thing that happened. As you are probably aware, Ward Connerly and his organization have gone into Michigan and they are collecting signatures to put on the ballot in November of 2004 a proposal to amend the state constitution to outlaw factoring race in admissions as well as in employment and contracting. In other words, (it's like) Proposition 209 that was approved by the voters in California. It's the same kind of proposition that the Ward Connerly group is seeking in Michigan. Why are they doing that? Because they are trying to circumvent the Grutter decision. The Supreme Court didn't say colleges "have" to take race into account. It said they "could" take race into account. It wasn't mandatory. What they are doing is changing the state constitution to say they can't. This is their approach. This is their way around that Supreme Court decision. So the battle continues.
In Motion Magazine: Following up on your reference to the Bush administration, what role has the Bush administration played both in the Supreme Court case and also since then with their administrative muscle?
Shirley Wilcher: Unfortunately, they did file an amicus brief before the Supreme Court arguing that the University of Michigan was using quotas and was impermissibly factoring in race. They took a very proactive, and I think a very harmful approach, in that entire Supreme Court argument and case. Their position is crystal clear; notwithstanding the fact that they had two African American senior officials who are not necessarily comfortable with what the administration did in filing the brief. These individuals of course were Condoleezza Rice and Colin Powell. But the administrations position has been clear.
I haven't seen the results of the investigations conducted by the Office for Civil Rights [in] AT these (targeted) colleges, but OCR first of all does have a responsibility to investigate complaints and we'll have to see what the outcome of those complaints will be. They haven't to my knowledge issued any guidance on how to interpret the Grutter decision. We'll see whether of not the ideological approach taken in the Supreme Court case will get reflected in their enforcement policy. I suspect that it will. It's hard to see how it wouldn't since it's all the same administration.
The department of education recently issued a report on race neutral alternatives in American education. while the department rightfully observes that the solutions to the issue of access and opportunity in higher education must be focused on the quality of elementary and secondary education, it and the right wing consistently fail to acknowledge that race neutrality will not solve the problems created by race -- ism. As Justice Powell wrote in Bakke, in order to get beyond racism, we must first take race into account. There is no other way.
Another federal agency, the Equal Employment Opportunity Commission (the EEOC), has a responsibility to monitor and to work with federal agencies, having what they call an affirmative employment program. That's comparable to the private sector program that I headed that requires affirmative action in federal contractors' workplaces. Federal agencies are required to have a similar kind of program called affirmative employment. That's in the law, the Civil Rights Act of 1964. But what did the agency recently do? It issued guidance last year taking out a requirement for affirmative action goals or timetables. In fact, taking out any kind of numerical guidelines at all.
The question is how can you have an effective program without any indication of what your goals are? So to me it was a subtle and maybe a politically necessary move on the part of EEOC, but to me it will cripple an effective affirmative action program because you have to know what your goals are. If you don't know where you are going, as my boss used to say, any road will get you there.
We have to have some kind of benchmark to determine whether or not we have achieved, not necessarily parity, but at least a reflection of what the available workforce is. Having goals helps an employer to know where there is an under-representation or underutilization of women or minorities and whether action oriented programs are necessary to break the glass ceiling, for instance.
In eliminating the numbers, I fear that agencies will be even more adrift in terms of their efforts to promote equal opportunity, particularly in the senior executive and senior management positions where women and minorities are still under-represented compared to white males.
In Motion Magazine: Is that a violation of the Civil Rights law for them to do that?
Shirley Wilcher: The Civil Rights law doesn't necessarily require numerical goals. It's something that has been in practice since the 1970s. It was interesting because it was all done so quietly. This is a major change.
When I was working for the Education and Labor Committee in the '80s, when the Attorney General Ed Meese tried to eliminate goals in the program that I ultimately headed, which enforces executive order 11246 signed by Lyndon Johnson, it caused a major firestorm. Even the Republican Senator Bob Dole, and in the House, Bob Michael, signed letters to the president (Reagan) urging that he not change the goals requirements. We won that battle. To now see, so quietly, the federal government back away from using goals I find rather troubling.
The other thing that is going on in the federal government is that one of those conservative groups, in fact the group that sued Michigan, filed a lawsuit against the Equal Employment Opportunity Commission and against the Department of Housing and Urban Development. This case is called "Worth v. Jackson, (formerly Worth v. Martinez)" and this lawsuit basically challenges the federal affirmative employment program. I believe that the EEOC backed away from goals -- because they were faced with that lawsuit.
The battle is taking different forms but it continues and we cannot be complacent about this.
In Motion Magazine: Has affirmative action become a code word for civil rights? It's not politically cool to attack civil rights but it's OK to attack affirmative action?
Shirley Wilcher: First of all, you are right to raise the issue of code words. The role of language in this battle is absolutely fascinating and effective. In the last ten or more years, the words "affirmative action", also the word "liberal", have been cast in such a negative light that people don't even use the words in many instances any more. I think "diversity" has replaced affirmative action, although affirmative action is very different in practice from diversity programs.
To answer your question more specifically -- yes, I think this is a way to attack civil rights generally and I think the civil rights community is aware of this. What is ironic is that the demographics projected by the federal government indicate that by 2050, 47% of the population in the United States will be African American, Latino, or Asian. In the middle to late century, they will be even larger numbers.
So, while we are facing this 21st century battle for civil rights, we have to acknowledge that the demographics are such that this battle is counter-productive. It's like trying to put a finger in the dam. Things are changing and we have to embrace this increase in diversity. If we don't, this nation will suffer. Who is going to be the future work force? How are we going to be internationally competitive, to use an often and overused term, if we don't deal with the issues of equity in elementary and secondary education? Not to mention higher education.
My concern is we may have a situation similar to South Africa where the educated classes are white, or of one color, and the under-educated classes, the majority, will be of color. It would be regrettable to see that kind of situation happening here.
I would urge these conservatives and opponents to civil rights, affirmative action and [to] equal opportunity to understand that they truly harm the nation by not allowing us to embrace diversity. They need to get busy helping to educate and prepare people of color, Hispanics, and African Americans, in particular, to take their leadership roles in the future. I think their strategy is very shortsighted.
In Motion Magazine: Some large corporations (General Motors, Microsoft, Steel Case, IBM, Coca Cola) filed amicus briefs in favor of affirmative action?
Shirley Wilcher: And they are to be commended. But also, they are on the front line. They are the ones who are dealing with a work force that they know has to be diverse in the future because they are operating on a global scale. How can one do business in Asia without having people in the work force that have some sensitivity to the cultural differences and norms in that part of the world? Or in South America? We have to have a diverse work force for them to be competitive.
That doesn't mean you have to have only Asians working in Asia, I think that is problematic and I had a debate with one of the Center for Individual Rights lawyers about that. We are not saying that. We are saying that those corporations need some people in their work forces that can help them do business successfully in other parts of the world.
These corporations understand reality. They are ahead of the rest of us. They understand what needs to be done in order for our corporations to continue to be successful. And that is not a question of discrimination against white males. We are talking about widening the net so everyone has a chance to participate.
In Motion Magazine: You might think it would be corporations like this that would be behind organizations like the Center for Individual Rights. Do you see some sort of a split here?
Shirley Wilcher: I find it interesting. The Institute for Democracy Studies (http://www.idsonline.org), in New York, did a study a couple of years ago and found that some of these corporations actually had funded the Center for Individual Rights and others while speaking in support of diversity. However, knowing some of the individuals who work for those corporations I think there is some sincerity. Again it's not simply a question of altruism. It's a question of understanding where their future work force will be and is. I think this is a question of business imperative far more than a question of altruism.
In Motion Magazine: Have you seen affirmative action being discussed during the presidential campaign?
Shirley Wilcher: Oh yes. It is fascinating to me that it was, at least early on, such a prominent issue. It wasn't entirely expected on my part. I think Governor Dean certainly put affirmative action on the agenda and openly challenged his competitors to address the issue and to embrace the issue. And so they did. I find it absolutely fascinating that it was such a major issue. Because of his forthrightness, and, of course, Rev. Sharpton's support for this issue, others were really faced with having to openly embrace affirmative action when, as we discussed, some don't even want to use the words. In fact, it was encouraging that the Democratic candidates eventually came out to embrace the concept.
I haven't heard it much lately but certainly early on it was a major issue in the campaign.
In Motion Magazine: So now the question is whether it will be an issue between Kerry and Bush?
Shirley Wilcher: Yes, that will be a question. I'm sure in some parts of the nation, particularly as it relates to minority communities, Black and Hispanic communities, I'm sure it will be an issue. Rev. Sharpton has promised to continue to make it an issue even if he is not a candidate. If he is successful it will remain a platform issue and hopefully a subject of some continued debate. We'll see.
In Motion Magazine: I read in one of your papers that you were asked to consult with the South Africans on affirmative action?
Shirley Wilcher: Yes. When I was at the Labor Department, the South African government was developing its employment equity legislation and we were part of a team that went down to Johannesburg and met with representatives of the Ministry of Labor to discuss how affirmative action programs work here in the United States. We also discussed how to set up a computerized system for accepting and processing reports from companies on their affirmative action achievements. That will certainly be one of the most memorable events in my life. Being a part of that entire process was absolutely wonderful.
In Motion Magazine: Have you been able to keep in touch with how it's been implemented?
Shirley Wilcher: Not as often as I would like. I do see articles written about how slowly change is happening. But that is not entirely unexpected. We are talking about changing a culture. Workforce changes take a long time just because of the need to not only have affirmative action but to also educate and prepare black South Africans to take on those roles. Not only opportunities were closed but the education system for blacks was crippled.
It's going to take a while before you will see the kind of representation that is expected. It will take a while but there has to be vigilance. One can't simply wait for time to pass. One has to be active in promoting equal opportunity and preparing the work force to take on those responsibilities.
And then there's resistance, from what I can see in the newspapers, from some of the companies themselves, as was expected, as well. When we were there we heard the same arguments about affirmative action equaling quotas and being discriminatory and that sort of thing, which I think was borrowed in part from the United States.
We weren't surprised to see the same arguments being raised. There's going to be resistance and they will have to deal with that.
In Motion Magazine: Are you familiar with affirmative action being used in other countries?
Shirley Wilcher: In India, of course, they have had what we call affirmative action as it relates to "untouchables" for a long time. And of course in Europe they have addressed in various ways what they call "positive discrimination". They have used it differently in different countries. In Ireland they have a program related to religious groups, Catholics versus Protestants. Affirmative action has different permutations depending upon the issues.
In Europe, you've got gender but also an increasing presence of people of color coming from former colonies. When I was at (the Department of) Labor I [went and] visited with the Netherlands government that was having to address the issue of integrating citizens from Suriname, in South America, into the Dutch workforce. The Swedes are dealing with the issue, interestingly. It's happening all over.
In Motion Magazine: And they feel this is an appropriate policy to use?
Shirley Wilcher: In some instances although affirmative action is a controversial concept for many. In some respect, the reluctance to use affirmative action results from the misinformation about affirmative action that originates in the United States. We have certainly gone a lot further than I think most countries because of our history and of the role of the courts in the United States, in terms of enforcement, and the role of the government agencies. Compared to other countries our agencies are far more aggressive, at least where there is the political will to be aggressive. Other countries don't even collect race or agenda data as we do with our census. In order to know who may be excluded from a job, for instance, you have to know the race or gender of that individual. But because of what happened with World War II there are some countries that still forbid the collection of race data. So they are starting from different perspectives and cultures.
The changes are different. I don't know if progress will be as fast but there isn't one way to do this. I am watching eagerly to see how progress will be made in other countries. There are different approaches.
In Motion Magazine: Do you think that affirmative action does or can contribute to developing a functioning democracy?
Shirley Wilcher: Yes, because in order to have a democracy everyone has to participate. By integrating (and this really is a later form of integration) our selective colleges and universities, our work forces -- particularly at the managerial level and our opportunities for contracts, to give everybody a chance to be businessmen and women if they want to be, that will encourage more involvement in the political process, in the process of voting.
Everyone needs to be involved. People need to feel that they have a stake in what goes on in this country. I think by encouraging people, giving individuals from every race and class an opportunity to go to Harvard, or MIT, or Michigan, as well as attending other colleges, makes everyone want to be involved.
I used to do voter registration in (Washington,) D.C. In going to some of the poorer communities many individuals whom we approached didn't even want to register to vote. They didn't care. They didn't see that that vote meant anything that had any effect on their situation. People have to believe that they have a stake in what happens in this society. I think that affirmative action helps that because it helps people actively participate in American life.
Many of the African American women who were classmates at Mount Holyoke College are now physicians and lawyers and I am so proud of them. One of my colleagues is Glenda Hatchett - Judge Hatchett. I said this once to Senator Kassebaum, "That's what affirmative action did for us. It gave us an opportunity. And we took it." Colin Powell talks about the opportunity. Talk about democracy -- he's the Secretary of State and he's embraced affirmative action as giving him a chance.
My concern is if the conservative groups are successful we will truly be back to a pre-1964 America. And I don't think given the changing demographics this country can afford it.
Much of affirmative action or equal opportunity policy comes from who is in the White House. I would urge everyone to vote, and I won't say for which party, but we have to understand the relationship between the political process, participating in democracy, and what happens to us personally in our work places, and in our schools.
Even as it relates to judgeships, there's a lot of debate about conservative judges and what's a happening with these appointments to the federal bench, and to the Supreme Court that really has an effect on our lives.
I have worked in Washington for more than 20 years. I've worked in the legislative branch and executive branch and I've seen firsthand just how one election can affect the lives of all Americans. We cannot afford to sit back and not participate in the process of voting. And I guess that ties into the whole affirmative action discussion.
That's something I learned in my opportunities that I received because somebody thought that I could do a job. Forty-years ago they never would have had an African American in those jobs. An African American woman as a counsel to the House Committee on Education and Labor? It never would have happened forty years ago.
We have to understand there is a linkage between all of these systems and that it is critical for us to be involved and engaged. The battle continues for equal rights but I think it is a battle for this nation -- for its future and for its soul, especially because of the changing demographics. We all must participate.
Published in In Motion Magazine March 31, 2004.
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