Aiken v. City of Memphis

KEITH, Circuit Judge,

dissenting.

I join Judge Jones’s excellent dissent and I would affirm the district court’s decision as stated in the original panel decision. I also emphatically disagree with the standard applied by the en banc court to the affirmative action programs in these eases. I write separately, however, to address the unfortunate inaccuracies and misconceptions articulated within Chief Judge Merritt’s separate concurrence.

First, I must stress my displeasure and dismay with the use of a judicial opinion to politicize this legal debate. The concurrence cites no law but instead represents one Judge’s personal viewpoint. It focuses on topics irrelevant to the case before us in order to present an ahistorical view of affirmative action programs. Thankfully, this writing represents neither this Circuit’s nor the Supreme Court’s perspective and is of no relevance to the district court on remand.

Here, the Appellants did not challenge the undisputed past discrimination against African-Americans in the City of Memphis. Additionally, the City’s interest in remedying past discrimination is a compelling one. Regardless of one’s ideological perspective on affirmative action, the question before the en banc coart was a legal one — whether the City’s remedy was narrowly tailored.

In this effort to denigrate affirmative action, a false picture is painted of a majority black city wielding its newly found power to wrongly deprive the white citizens of Shelby County. It states that the general and voting populations of the City of Memphis are now predominantly Black as are the Mayor *1180 and many high ranking administrative aids. “Accordingly, there is a substantially greater risk that the continued use of racial hiring goals which exceed the qualified labor pool in question may discriminate against whites.... We may not assume in such a situation that the required employment ratio is benign.” This statement summons and manipulates the fears of affirmative action that have been nurtured by American society. There is no support for the assumption that Blacks in positions of power will discriminate against whites as their white predecessors discriminated against Blacks. It saddens me deeply to read this political button-pushing in what should be a legal opinion.

More importantly, the concurrence mis-characterizes the purpose of the remedial plan proposed by the City of Memphis. According to the concurrence, the purpose of the consent decree, and of the Equal Protection Clause, is to protect a “minority” race within a city from the majority race “which controls the governmental machinery.” Playing fast and loose with the term “minority,” the concurrence ignores one undisputed fact — the compelling interest behind and purpose of consent decrees are to remedy past discrimination against African-Americans. Absolutely no evidence was presented concerning a history of discrimination against white males by the City of Memphis.

Although the population of Memphis has become “majority” African-American within the past ten years, this fact — largely a result, I assume, of white flight — does not erase the past discrimination within the City and within the fire and police departments. The consent decree was enacted to remedy this past discrimination in an attempt to put African-American officers on a realistic promotional track. Where departments historically refused to hire African-Americans until forced by court order, and where promotional requirements included a seniority factor, no realistic hiring or promotional opportunities for African-Americans exist without this remedy.

The assertion that “[t]he Equal Protection Clause does not allow the majority race in a city to use its governmental power to prefer its race over the minority race” astounds me. This statement ignores that our legislators promulgated the Fourteenth Amendment to eradicate this Country’s long history of subjugating African-Americans. Further, the Fourteenth Amendment was not intended to prohibit measures designed to remedy this Country’s treatment of African-Americans.

The fact that a minority race — I assume all will concede that African-Americans are still a minority race in America — assumes a numerical “majority” within a city’s limits changes nothing. The history of the discrimination against African-Americans and denials of opportunities to African-Americans within the City of Memphis ensures the “minority” white race will never be at a disadvantage there. Certainly the “minority” white population will never experience the legally segregated and underfunded education of their children, the denial of access to housing in “majority” neighborhoods, the indignity of having to use the “minority” only water fountain at a department store or the double indignity of “minority” employees having to use the back door of the Peabody Hotel in order to serve “majority” patrons.

My deepest regret about the assertions in the concurrence is the proposition that legalized racial discrimination could ever be reinstituted in reverse in this Country. For African-Americans, America has a long tradition of slavery, segregation, bigotry, and injustice. In the not-so-distant past, a past many would like to forget, American society legalized the inferior treatment of an entire race of people based solely on the color of their skin. This legalization of bigotry denied African-Americans access to, and participation in, all the opportunities, all the benefits, all the rewards, and all the powers embodied by the American ideals of liberty and democracy.

All the affirmative action programs we could possibly dream up can not change the color of one’s skin. This fact renders the likelihood of legalized racial discrimination against a white “minority” preposterous. The appearance of this proposition in legal discourse, especially considering the history of Memphis, is insulting and saddening.

Justice Marshall eloquently described the denial of the American dream to African-Americans in Bakke, stating that:

[T]he racism of our society has been so pervasive that none regardless of wealth or *1181 position, has managed to escape its impact. ... The experience of Negroes in America ... is not merely the history of slavery alone, but also that a whole people were marked as inferior by the law. And that mark has endured. The dream of America as the great melting pot has not been realized for the Negro; because of his skin color he never even made it into the pot.

University of California Regents v. Bakke, 438 U.S. 265, 400-01 , 98 S.Ct. 2733, 2804 , 57 L.Ed.2d 750 (1978). Symbolic of this truth articulated by Justice Marshall is the experience of tennis player Arthur Ashe who, in 1993, died of AIDS. Ashe wrote in Days of Grace that “living with AIDS is not the greatest burden I’ve had in my life. Being black is. No question about it. Even now it continues to feel like an extra weight tied around me.” Arthur Ashe, Days of Grace, (1993). No matter how numerous the triumphs achieved or how grave the obstacles encountered, being Black in American society continues to overpower the successes and failures of African-Americans in a way a white “minority” could never experience.

Those who see a population majority in Memphis as a threat to the empowered racial majority distort reality. This view intersects with the oft recited litany that African-Americans should forget the past and pull themselves up by their bootstraps. These notions fail to appreciate the nature of the obstacles which continue to impede equal access to opportunity. Even today, even within cities where AMean-Amerieans tip the population scales at 51%, the systemic discrimination against African-Americans in America is firmly rooted in our institutions and was at one time the official policy of our governments. Quite simply, there have been no bootstraps to pull on — and none exist today.

I can not accept that African-Americans, until recently, practiced self-exclusion in Memphis. Nor can I accept the notion that a tyrannic African-American “majority” is now stealing all the opportunities from a white “minority.” Similarly, common sense dictates that the proposition that a consent decree seeking to remedy past discrimination could ever, in reality, place whites at a disadvantage in hiring or promotion is ludicrous. The consent decrees were designed to level a historically uneven playing field. Some preference may be necessary to reach this laudable end.

Finally, I close with the often quoted, yet ever evocative words of Justice Harry Black-mun:

I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot — we dare not — let the Equal Protection Clause perpetuate racial supremacy.

Bakke, 438 U.S. at 407 , 98 S.Ct. at 2807 . These words ring trae and should be instructive. In 1994, equality is far from won. In fact, today we are faced with a new oxymoron — the notion of reverse racial discrimination. This outrageous notion is nothing but inflammatory fodder designed to discourage taking race into account even where such accounting promotes fundamental fairness, equality, and justice.