The Affirmative Action Puzzle: A Living History from Reconstruction to Today

by Melvin I. Urofsky

A rich, multifaceted history of affirmative action from the Civil Rights Act of 1866 through today's tumultuous times

From acclaimed legal historian, author of a biography of Louis Brandeis ("Remarkable" --Anthony Lewis, The New York Review of Books, "Definitive"--Jeffrey Rosen, The New Republic) and Dissent and the Supreme Court ("Riveting"--Dahlia Lithwick, The New York Times Book Review), a history of affirmative action from its beginning with the Civil Rights Act of 1866 to the first use of the term in 1935 with the enactment of the National Labor Relations Act (the Wagner Act) to 1961 and John F. Kennedy's Executive Order 10925, mandating that federal contractors take "affirmative action" to ensure that there be no discrimination by "race, creed, color, or national origin" down to today's American society.

Melvin Urofsky traces the evolution of affirmative action through labor and the struggle for racial equality, writing of World War I and the exodus that began when some six mil-lion African Americans moved northward between 1910 and 1960, one of the greatest internal migrations in the country's history.

The author also writes of World War II, when women replaced men in factories and the issue of equal pay arose, and of Franklin Delano Roosevelt signing into law his last great New Deal measure for returning veterans--the Servicemen's Readjustment Act (the GI Bill), the most massive affirmative action program in American history.

Urofsky tells the story of the struggles of blacks through the 1930s and 1940s, and how the southern states had to live up to the "equal" parts of the "separate but equal" formula. He writes as well about Brown v. Board of Education of Topeka, the passage of the 1964 Civil Rights Act, and the 1965 Voting Rights Act.

He describes how Harry Truman, after becoming president in 1945, fought for Roosevelt's Fair Employment Practice Act and, surprising everyone, appointed a distinguished panel to serve as the President's Commission on Civil Rights, as well as appointing the first black judge on a federal appeals court in 1948 and, by executive order later that year, ordering full racial integration in the armed forces.

We see Dwight Eisenhower sending in one thousand U.S. Army paratroopers and federalizing ten thousand Arkansas national guardsmen to protect black students trying to go to school; John F. Kennedy establishing the President's Committee on Equal Employment Opportunity and naming Lyndon Johnson as its chair, with Kennedy understanding, as did civil rights leaders, that no matter how the government tried to eradicate racial discrimination, the key to progress involved private sector employment with decent paying jobs, which would pull black America out of poverty.

Urofsky explores affirmative action in relation to sex, gender, and education and shows that nearly every public university in the country has at one time or another insti-tuted some form of affirmative action plan--some successful, others not.

In this important, ambitious, far-reaching book, Urofsky writes about the affirmative action cases decided by the Supreme Court: cases that either upheld or struck down particular plans that affected both governmental and private entities. We come to fully understand the societal impact of affirmative action: how and why it has helped, and inflamed, people of all walks of life; how it has evolved; and how, and why, it is still needed.

Genres: History, Nonfiction, Politics, Race, Society, Law, Government

592 pages, Hardcover

First published January 28, 2020

About the author

Melvin I. Urofsky is professor of law and public policy and a professor emeritus of history at Virginia Commonwealth University. He received his B.A. from Columbia University in 1961 and doctorate in 1968. He also received his JD from the University of Virginia. He teaches at American University and George Washington University Law School.

Reviews

[Porter Broyles · Rating 3 out of 5]

Melvin Urofsky was a professor of Law and Public Policy at the Virginia Commonwealth University. Over his almost 50 year career he has written about 50 books on the law.

When he tackled the subject of Affirmative Action he set out to produce a book that evenly and fairly presented all of the sides. In the introduction, he explained his personal position (that he believed in the need for something, but that he didn't know what/how to achieve the objectives).

In some ways he did a great job with the topic, in other ways he utterly failed.

The book provides a great overview of the legal history of affirmative action. Urofsky provides comprehensive coverage of the legal and political issues involved with Affirmative Action. He covers how businesses, politicians, and the courts have confronted the issue.

Generally, he does a good job with this coverage, but at times he makes blanket statements which are too broad. For example, his love of LBJ got him to state that Johnson didn't have a racist bone in his body! Really? While Urofsky cites Caro's work, Urofsky has a completely different take on Johnson's motivations. In other places, he declares certain points of view to be right or wrong---and when he does so, it reflects a bias he didn't acknowledge to begin with.

The book fails in that it does not provide a balanced point of view.

Urofsky rarely cites minorities or women in his coverage of the subject. His perspective is always from a top down perspective, never a grass roots point of view. If he cites a woman/minority, it is because that person was a major plaintiff in a relevant case or politician.

He presents the legal issues and he sees the political leaders (e.g. LBJ) who pushed different affirmative actions positions through the political machine or courts; but he never spends more than a paragraph presenting the people who fought for or drove the politicians. When he does present those points of view, they are presented more as an aside rather than a driving force.

Unfortunately, in doing this, he often comes accross as tone deaf to the plight of women and minorities. There were too many times where I thought, "OK, I understand what he's saying, but there had to have been a better way to say that."

If you are interested in a book that covers the legal history/development of affirmative action, then this is a good book.

[Happy Skywalker · Rating 2 out of 5]

Okay, there is historical and legal info in here. Also, this book can help you know how white men feel and have felt about affirmative action, how white men voted in regards to affirmative action, when white men have sued in response to affirmative action efforts, and also how affirmative action has been unfair to innocent white men. Also, the author can tell you all about "reverse discrimination" and other topics sensitive to white male Americans. There may also be mention of other people occasionally, although they don't seem important to the narrative.

[Jakub Dovcik · Rating 3 out of 5]

Tackling a complex topic, this book takes more of a textbook-ish, borderline arid, approach. The large parts it is divided into are chronological, beginning with a relatively brief overview of pre-Roosevelt times (where Affirmative action is defined very loosely), through the Fair Employment Practice Committee during the Second World War and later the Johnson Administration’s establishment of the Equal Employment Opportunity Commission (EEOC). (Urofsky being very generous towards LBJ.)

Then it shifts its focus more on the appellate jurisprudence, beginning with DeFunis v. Odegaard and later landmark Regents of the University of California v. Bakke that established the constitutionality of the use of race as one of several factors in college admission policy. The three main streams of narrative are admissions to educational institutions, employment in federal contracts and private workplaces.

It is interesting to see how it was actually the Nixon administration that through its Philadelphia Plan for the first time brought quotas into federal affirmative action programs. Carter is praised for ‘building the infrastructure’ that enabled the survival of affirmative action programs during the Reagan era. Both Reagan and Bush I are presented as attempting to scale back the programs, which they do from the perspective of federal government’s litigation - at the same time when affirmative action becomes ingrained in corporate America and in other private programs and institutions.

The book distinguishes between “soft” and “hard” affirmative action - the former being outreach, non-discrimination and active recruitment - which Urofsky supports - and the latter essentially some forms of goals or quotas.

Large parts of the book seem quite repetitive - there are chapters about affirmative action in education or for women, that have relatively basic arguments. The narrative about individual cases does not really emphasize their importance or how they actually fit together - which they often do not, but the relatively clear opinion of the various courts in the past 50 years (essentially from Bakke to Grutter v. Bollinger in 2003) has been on support for race as a part of a complex, holistic approach to students. In that way even states like California, after the success of Prop 209, which forbade using race-based affirmative action, can include race among other factors in its admission programs.

Urofsky’s argument is that EEOC overreached and overused Title 7 of the 1964 Civil Rights Actually, which provoked a counter-reaction - but much more is spent on explaining the counterforces, the arguments of neocons like Nathan Glazer or Thomas Sowell, than proponents or activists for it.

All that means that the book presents a perspective on affirmative action that looks more at macro data than at individuals that benefited from the programs. At some points, like in its retelling of the changes in City University of New York’s open admissions policy, it argues that it harmed the quality of the school - but arguments for diversity at universities or workplaces are made just in a generalised manner.

It is not that it would be biased against it - it is not, I believe - it just does a rather dull case retelling the administrative actions and jurisprudence, that obscures what it actually is all about.

[Dominic]

The Affirmative Action Puzzle is about the history of affirmative action in the United States and how it has affected the law, academia, employment, and other aspects of life. I initially got this book for research for an argumentative essay on affirmative action, but I found the small portions of content I had used for my essay intriguing and decided to read the whole book. Reading this book actually slightly altered my view of affirmative action. I had a somewhat oversimplified view of it and the arguments for both sides of the affirmative action debate were compelling. I really liked how the author explained affirmative action chronologically and how it evolved over time, as I got to understand the context of the policies very well. For example, I appreciated that the author didn't just simply give a definition for affirmative action but rather defined it by referencing certain practices and policies. He often split affirmative action into "soft" and "hard" affirmative action and did a great job showing the ambiguity of affirmative action by discussing things like Supreme Court cases on affirmative action. I think the author did a great job trying to be unbiased and just giving the facts. I would recommend this book to anyone who likes reading anything political, about the culture war, or the civil rights movement.

[Bryn · Rating 4 out of 5]

This is exactly what it is billed as--a chronological review of affirmative action policies and jurisprudence through the present...although notably published prior to the Black Lives Matter movement really gaining traction. I was looking for this very sterile review; not commentary, not the sociological implications of the policies, just the policies themselves--which is what this book offered. It felt a bit tedious at times, but overall gave me the information I was looking for. Spoiler alert: Existing affirmative action plans are not what will redeem racial injustice in this country.

[Kevin Parkinson · Rating 2 out of 5]

(1) This book should contain a content warning. He quotes some of the most racist rhetoric imaginable. Of course he's doing so to illustrate various historic perspectives over time - no one would argue that the author himself has such outwardly bigoted beliefs. Nonetheless, a content warning would adequately prepare readers of all backgrounds on what is coming, and might serve to lesson the sting or at least the surprise that such rhetoric might trigger.

(2) Language is outdated as he often refers to people of color as "Blacks."

(3) He oversimplifies a story of progress and acknowledges but downplays ongoing struggles as a way to fit his narrative. As one tiny example, he says that after World War II, the number of Black women who were household servants dropped all the way down to a third. Another way to say this would have been, "Holy s*** well into the 20th century we still had a third of Black women working as household servants." He'll also imply things like, "After 1965, everything was all good! Black people had access to vote and to jobs. What else could they want?!?!"

(4) When there was legitimate progress, he makes two mistakes: (a) He overemphasized the role white people had in creating that change, and (b) He says that white people did create such change because they were good people (and not, as the author of "Caste" would illustrate, the result of their own self-interest). He even says that LBJ was not racist, and only acted racist for political purposes, to not completely have the south hate him.

(5) He's too two-sided about things. He tries to position himself as a neutral reporter, but in doing so gives off major "there are fine people on both sides" vibes. He'll imply that there's always been plenty of legitimate concerns to grapple with instead of just saying, "Some people are racist af and they created discriminatory policies in an attempt to hoard their own power and privilege, and perhaps they tried public narratives that were more palatable, but in truth they were just racist."

(6) I think Dr. Tatum's moving walkway metaphor would be beyond him.

(7) When describing at least four presidential administrations, he says that minorities were being unreasonable and acted like they should have been grateful for the crumbs they received. Throughout the book he positions himself as arbiter about Black people are and are not allowed to be upset about. It's very patronizing.

(8) I'm not sure if he was simply reporting the arguments at the time or was arguing the points himself, but several times he said "but this poor white guy didn't get into school - isn't that unfair? He's not responsible for racism and is just a poor innocent victim!"

(9) In his chapter on academia he basically says that by implementing admissions policies cognizant of historic systems of oppression, colleges in New York were completely abandoning excellence in favor of access. He literally called Regents exams the "gold standard" and characterizes their abandonment as the dismissal of quality.

(10) The author claims to not have a definitive position in the argument of affirmative action and instead attempts to report history fairly, but this is obviously not true. The author does not support affirmative action except in the absolute bare minimum of disallowing blatant discrimination. He seems to believe his strongest argument for this position is in the cases of zero sum games. He argues that if you are able to expand your business anyways, it's fine to hire white people and people of color. But, he says that if you only have one job, and it is supposed to go to a person who is more qualified who happens to be a white man, by forcing the employer to give it to a woman of color, you've made things unfair for the white man, who he argues did nothing personally to contribute towards a system of discrimination. The issue is, he neglects to note how giving it to the white man is unfair to the woman of color, who did nothing personally to be discriminated against. Even if we look at zero sum situations, the author's choice to center and victimize the poor white man is telling.

(11) He argues that Jewish people were champions of African Americans until African Americans became ungrateful, pushed too hard, and demanded affirmative action programs, at which point Jewish people turned away. I think each part of that narrative can be criticized, but to the extent that there was strong alignment between Jewish people and people of color, and to the extent that that alignment has become divided, another way to say that is, "Some groups of white people were willing to support African American causes until it came down to actually making personal sacrifices, at which time white people immediately gave up any pretenses of allyship."

(12) Meritocracy is a myth. The author never acknowledges that.

(13) In his chapter on academia, he laments that people from marginalized communities dissociate themselves into private cliques, which he attributes to affirmative action. Author should study "Why Are All The Black People Sitting Together In The Cafeteria." First, he argues that this separation is a bad thing, when sometimes it is a survival mechanism. Second, he argues that it is the fault of people of color who are separating themselves, instead of asking if dominant cultures are inviting other people in.

(14) In the same chapter on academia, he argues that because of affirmative action, people of color have low self-esteem because they question even in their own minds whether they deserve to be in those places, or if they were just diversity admits. Let's set aside imposter syndrome for a moment (in which people of all races and genders experience). Tragically, there is research on stereotype threat that indicates these feelings are true and particularly harmful for people of color. However, I don't understand the author's argument that because of that diminished self-esteem, we should get rid of affirmative action. There are proven ways to reduce stereotype threat. Institutions should assume responsibility for doing such as opposed to having people of color figure it out on their own or even worse getting rid of affirmative action, apparently to "help" people of color.

(15) I'm genuinely confused as to why he cites polls so much. My sincere hope is he is simply documenting historic views of affirmative action. I worry that at times he uses it to say, "Hey I'm not taking a side - I'm just listing some reasons why we don't need affirmative action, and one such reason is that it has been largely unpopular amongst white people throughout American history." My God if we never did anything that didn't piss off white people in this country we would never make any progress at all.

(16) He says he doesn't have a definitive position, that he's just reporting the facts, but... (a) He is super duper pushing back on evidence in favor of affirmative action and just doesn't do the same amount of rigor for arguments against affirmative action, (b) Every time he acknowledges racism, sexism, or ableism, it is always followed by a "but..."

(17) The strongest, most forceful and compelling arguments in favor of affirmative action come not from the author himself. He simply summarizes "The Shape of the River."

(18) In his second chapter on women's affirmative action efforts he argued that the real problem isn't sexism, it's that women take time off to mother. He makes this argument with complete sincerity and without a hint of irony or any critical thought into the role sexism itself plays in requiring women to be the ones to leave the workforce for five years in order to be the primary caretake of kids. He even called it "voluntary."

(19) Okay so this isn't going to be my strongest argument, but here's a random point... He mentions that the #MeToo movement collected "hundreds" of stories of women being harassed. I don't have the exact facts to dispute him, but I think this point is illustrative of how he significantly downplays the struggles people experience. Around the time the book was published, #MeToo was used more than 19 million times on Twitter. Of course not all of those times were stories people shared. But even if a half of one percent of the posts included stories, it would tens of thousands of stories on Twitter alone, not "hundreds." Again: I don't have the exact figures, unfortunately. But I suspect he's off by orders of magnitude.

(20) "Bush's record on diversity is not bad." An exact quote. His evidence for his basically boils down to "he had Black friends."

(21) He indicates some positives that have come from affirmative action, but then says: "But did it raise all African Americans to a near parity with their white neighbors? Did it eliminate huge economic gulf in education and earnings that has afflicted black America? To this the answer must be No." First of all, must that be the standard we hold the programs to? That is, must we say "Unless affirmative action completely eradicates institutionalized racism, it's a failure and we should abandon it?" Secondly, this neglects the fact that we had centuries of slavery and decades of Jim Crow laws, plus everyday racism perpetuating to this very day with no end in sight. Even if we want to demand affirmative action entirely eliminates racism (which is absurd), can we at least try it for more than 50 years? Third, it assumes affirmative action is the only way to end racism. Finally, might it be true that even though affirmative action didn't completely solve for racism, we'd be in an even worse place if affirmative action didn't exist?

(22) He says that women don't have a problem getting into the door; their problem is that once they're in the door, they experience sexism. His assumption seems to be, "well then we might as well not have affirmative action then." I think the lesson instead is, "we desperately need affirmative action AND we need other interventions." He further seems to imply that affirmative action makes this problem WORSE, though he provides little actual evidence for this. There really is no evidence he could present, as even self-reported results on surveys might not be accurate here. Finally, even if it is true (which I don't think it is), I'm not sure the lesson can be extended beyond sex.

(23) He says, "Hardly anyone would argue that racism and sexism have disappeared in the United States." Sadly, I disagree. PLENTY of people suggest that racism and sexism no longer exist, and - in fact - many suggest that now white men are oppressed. It's insane.

(24) He says, "If we now condemn the Jim Crow era for punishing people solely on the basis of their skin color, then morally there is no difference in rewarding them because they are black or brown or female." Okay woof. How does someone with such an elementary grasp of race relations get to write a book about affirmative action? For now let me just say that is true only if you confuse equity with equality.

(25) He says that affirmative action is one of the reasons Donald Trump got elected. To counter that I present this scenario: Imagine a basketball game. A player on the home team shoots a buzzer beater and makes it to win the game. The crowd erupts in celebration, until they notice that the ref has called the shot ineligible, because he got it off after the buzzer. Imagine that these fans get pissed. As sports fans sometimes do, imagine they exit the stadium, flip cars over, set garbage cans on fire, and generally create mayhem. If the call was the right one, it would be INSANE to blame the *REF* for the craziness. The SPORTS FANS are being unreasonable. Similarly, if affirmative action plans made white people so pissy that they elected Donald Trump, that's not the fault of affirmative action plans. The affirmative actions plans were the right and fair thing to do. We shouldn't stop right and fair things from happening because belligerent people might go crazy if we do them. And if belligerent people do stupid things, we shouldn't say, "Well, the ref's at fault because he did what was right."


Ultimately, I fear this is the worst kind of book. It talks about a very sensitive topic without near the care it deserves. The author clearly wants to be seen as a fair guy, maybe even one of the "good" white people. And I don't believe the author is overtly racist. But the way he centers white people and makes white people out to be victims is alarming. Worst of all, he uses academic language to create a pseudo sense of impartiality, when in reality this is racist language disguised as intellectualism. I would like to think this is not the author's intent, but I honestly fear racists will pick up his language as a way to use more palatable public narratives. He takes serious debates about whether affirmative action will disrupt "social cohesion." It's just reckless. I could forgive him for such oversights, except his book is nearly 500 pages with an additional 100 of notes and appendices. With close to 700 pages to work with, you'd think he could get to some of the nuance. Sadly, he misses the mark.

[Marleen · Rating 4 out of 5]

This is a careful review of the history of affirmative action. Affirmative action has helped minorities to get into competitive schools and find employment in professional careers. But it has raised the concern among white males who feel they have been discriminated against. It is easy to compare test scores but other qualities that will lead to success is more difficult to quantify. It is to society's benefit to have a diverse work force it can that process ever be fair. It should be noted that white men have benefitted from affirmative action for hundreds of years.

[Daniel Farabaugh · Rating 4 out of 5]

This is a meticulously researched and well written book. It is a bit dry at times, but it is a very balanced look at afirmitive action. Its only failing is that it does not address continuing descrimination and white privilage in regards to affirmitive action. It repeatedly states that the argument that blameless white people are suffering to give opportunities to historically oppressed people. But, thus white people had benefited from systemic racism and still do. This would have filled out the book more.

[Gaia · Rating 2 out of 5]

Two stars.

It is very important to read the notes in the back.