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AFFftOATiVE ACTION
WHAT NOW, AFTER WEBER
f
Now that the euphoria of the victory
in Weber v. Kaiser Alumninum has
died down, it is time to consider sober
ly our credits and debits in the ongoing
struggle for affirmative action.
Frist, the good news: Weber lost. A
collective bargaining agreement bet
ween an employer and union galling
for affirmative action was upheld by
the Supreme Court. Hence, the
message to Mack workers is clear: have
affirmative action negotiated directly
into the contract. Further, the Supreme
Court has upheld the use of quotas.
Though maligned by the press and
pundits, the fact remains that quotas
are constitutional, have been held to be
so by the overwhelming majority of
Fe&eral Circuit Courts of Appeal, and
have been validated by the Supreme
court. In addition, the Supreme Court
has interpreted Title VII' of the Civil
Rights Act hi such a way that it cart
continue to ibeiefit the original
beneficiaries: blacks.; Along with this,
as Justice Blackmun's concurrence im
plicitly notes, societalidiscrimination as
a basis for affirmative action and not
just discrimination perpetuated by an
individual company can be- valid
basis for affirmative action. These are
all victories; they cannot be sniffed at;
they were all won thanks to the tremen
dous organizing efforts of labor and
. civil rights' groups.
Now for news that is not so good:
The constitutional basis for affirmative
action is not mentioned. Weber was
decided on the basis of interpretation
of statute Title VII ; Thus, moves by
the right wing in Congress to amend
the statute can be expected. In addi
tion, the Supreme Court has yet to
state clearly that blacks have a con
stitutional right to affirmative action.
An historical reading of both the Thir
teenth and Fourteenth Amendments, to
the U.S. Constitution brings us to no
other conclusion., A Supreme Court
opinion stating this clearly would go a
long way toward reversing the myth of
"reverse discrimination."
Furthermore, Executive Order
11246, a further legal basis validating
affirmative action is explicitly omitted
from discussion. This is significant. In
Weber, the Supreme Court interprets
Title VII as permitting but not requir
ing affirmative action. Executive Order
1 1246, on the other hand, requires af
firmative action; thus, in a sense, it is
stronger. Note also that Uniroyal, the
tire giant, is challenging the Executive
Order right now in Court. r. Ex
ecutive Order requires that ah jm
panie's having fifty or more employees
that do more than $50,000 a year in
Government business develop an affir
mative action plan. That is 175,000
companies with 41 million workers. If
Uniroyal wins, it can fairly be said that
the loss will be greater than if Weber
had won. Once again, we are reminded
that freedom is a constant struggle,
that we must be eternally vigilant, that
like taking a bath, freedom has to be
won time and time again.
The Uniroyal challenge is matched in
significance by the case to be argued
before the Supreme Court this fall,
Fullilove v. Kreps. This is a challenge
to the Public Works Act that called for
ten per cent of government contracts to
go to minority business. A loss in
Fullilove will send the already tottering
black economy spinning. Weber does
not provide a definitive answer as to
how Fullilove will be decided, though
it should go jalong way toward pro
viding insight. Weber does not speak,
as well, to the validity of the recently
proclaimed Equal Employment Oppor
tunity Commission Guidelines as Af
firmative Action. Do not be surprised
if these are challgned in court soon.
In sum, the thrust of Weber is
positive but not a moment should we
deceive outselves into thinking that the
war is ovensimply, a battle has been
won. If we are not to be pushed back
further, we must continue the cam
paigning that produced a defeat far .
Brian Weber. In particular, we must
press labor unions, for if one is to ex
plain how we went from the disaster of
Bakke to the hope provided by Weber
in less than a year, the simple answer is
the involvement of labor. Unions filed
amicus briefs and mobilized with civil"
rights groups on Weber, while either
supporting Allan Bakke or remaining
silent. Blacks in unions should make
sure their union is doing its j-o-b on af
firmative action. In sum, though the
Weber decision was generally positive,
like Eduoard Mondlane, martyred
leader of the liberation struggle in
Mozambique, we are compelled to say
once more: "The struggle continues..."
JKAISED JN BRUNSWICK, 6Ay AND
1
EDUCATED IN T05KEGEE.- Srtfc Btwww. wuwr
IlY FAMOUS AS A PIONEER IN SOCIAL WORK, AS
4
funri i ac iki wilDHiwft As A GRADUATE FDR HER
LOCAL DEPT. OF HEALTHflN I935SHEHELPE0 DR.
WINCHESTER PERFECT A CURE FOR MALARJA
MARRIED TO GUY R.TRAMMELL IN 193 SHE WAS
"""iV AM ONE OFTHEFIRSTTWO NURSE-MIDWIVES TO BE
y.fK-W :
' i , TRAINED 6 USED UNDER the ROSFNWaLD FUND
. ! ' 1 i ' - t . ..
l. v - h
AFFIRMATIVE ACTlOtl GETS
BOOST FROM COURT
" 4 By Vcreca Jq:da
EXECUTIVE DI1ECT0I,
NATIONAL UIIAM
LEAGUE
Miw 1 !
The Supreme Court's decision in the
Wetecase removes a major question mark
hanging over affirmative action programs in
employment. '
The Court gave voluntary affirmative ac
tion programs its stamp of legal approval,
and filled in some legal banks in defining
permissible steps to overcome the effects of
racial discrimination.
Last year's Bakke ruling was vague, but
did affirm the Court's long-standing com
mitment to affirmative action that redresses
past discrimination. Weber is important
because it extends the affirmative action
remedy to societal discrimination without
regard to whether the specific employer has &
history of past discrimination or not.
Weber and his supporters argued that in
the absence of a finding of past
discriminatory practices at Kaiser Aluminum
Company's Gramercy plant, the company
and the union had no right to institute a pro
gram granting preference to blacks.
In fact, there was a mass of evidence
showing - that blacks indeed were
discriminated against. Less than two per cent
of the skilled jobs at the plant were held by
blacks, although the area's workforce was
forty per cent black.
But that evidence never came up in the
lower courts that ruled against the affir
mative action plan. Since blacks who had
suffered discrimination in the past could sue
companies that refused to hire them, it was
in the interest fcf the company and its union
to refuse to admit to such discrimination.
Weber also, claimed that the Civil Rights
Law of 1964 that outlaws racial discrimma-.
tion in employment also , bans racial con
sideratins that favor minorities.
That claim turns the law on its head, as the
Court's decision makes clear. The Court rul
ed that Congress clearly intended to en
courage the private sector to voluntarily
remove the last vestiges of racial discrimina
tion through race-conscious affirmative ac
tioii plans.
Weber had plenty of support frqm people
who argue affirmative action is really a form
of reverse discrimination against whites.
That's an incredible claim in a society in
which blacks continue to be relegated to the
worst jobs and to restrict opportunities.
In fact, the Weber case itself is proof that
affirmative action doesn't harm whites. The
company used to hire craft workers from
outside the plant; Because they wanted to
conform to the legal and moral requirements
of the law, the company and the union work
ed out a plan to train craft workers from the
plant's existing workforce. Half of the
trainees would be minorities and women, the
other half, white men.
If that affirmative action plan had not
been put into effect, the company's white
employees would never have a shot at higher
paid craft jobs. Weber himself would never
have a chance to better himself inside the
plant. , ' - - ; ;
In trying" to expand the numbers of ttsv
skilled black crafts workers, the company
created new opportunities for its white
. workers as well! !;,v:.;;v.: ..'v.-.- ,:V'-' w''''
In upholding the Kaiser Plan, the Court
also set some guidelines for voluntary affir
mative action plans. They must mirror the
purpose of the law by breaking down
discriminatory patterns. They v must not
"unnecessarily trammel the Interests of
white employees" And there myst be tem
porary; measures to eliminate : racial im
balance. We must be mindful of the fact that
Weber took place against the backdrop of a
growing gap between blacks and whites.
Blacks , are experiencing Depression-level
unemployment, and: we are locked into low
wage, marginal jobs. There is still massive
resistance to black needs.
So the Weber decision may have an Impor
tant impact on black employment oppor
tunities. It offers hope that affirmative ac
tion will be an important tool to forge racial
equality in America. i
The Court's sanction of voluntary, affir
mation action plans suggests a positive
obligation for private employers, to press
ahead with broad, comprehensive affir
mative action. "
They had a legal mandate to do so before
Weber. Now they have no excuse to avoid
their legal and moral duties. ,
t
r
Congressman Hawkins' Colunn
BLACK STUDENTS OKI ELY
HOLDING COLLEGE GAMS . -
t:tt:y F. Hawkins
I 10
'
Blacks have had to wage a major struggle
to get an education in this country.
At no time has the struggle been easy, and in
many instances it has been marked by ex
treme bitterness.
In most black families, there are tales on
this issue, which 'highlight educational
deprivation and discrimination; and great
stories that tell tf someone's mother, br
father, or sister, of brother overcoming the
barriers of racism and prejudice in the
classroom.
For those who believe these hard times are
behind us, there's a new HEW publication
which reminds us that the struggle is still on.
The publication is called "Access of Black
Americans to Higher Education: How open
is the door?"
Recognizing early that the road to college
is paved by successfully completing high
school, the report notes that a smaller pro
portion of blacks from 18-24 years old were
dropouts in 1977 than 1967. This certainly is
a progressive step, more black-students had
dropped put of high school that had enrolled
in college in 1977. Although the degree to
which this occurred was less that what was
experieced in 1967, it was still dissimilar to
the situation for their white counterparts.
In addressing this problem the report calls
for increasing hich school completion rates
of black students through better academic
guidance counseling, improved special
education placement and tracking, improved
classroom preparation, and increased par
ticipation in college preparatory programs.
' These suggestions do not exhaust the list,
but . improvement here, means at least
meeting minimum requirements for high
school completion,-which I a necessity for
thoscwanttag tb'gdttn'te colleger'1"1
As for access to higher education itself,
there are tell-tale signs of increasing difficul
ty, which blacks need to heed, if they are to
increase access.
No one will dispute Black higher educa
tion gains made after the mid-60's but today
the picture is undergoing change; because
blacks are either falling back in their access
rates in some significant areas, or because
they are barely holding their own in other
academic areas.
The report cites a number of startling fac
tors in black access to higher education in
1976:
law and medical, school admissions
peaked in ' 1 97 1 and have been consistently
declining ever since;
in the fall of 197, black students
comprised . 8.4 per cent of full-time
undergraduate; four years later; 6.4 per cent
of the B.A. degrees were conferred on black
students for which there is no apparent
explanation;
as the level of training rises for black
students, their rates of access and graduation
decline;
at the graduate level, because blacks
must work, blacks are more likely to be
enrolled part-time than the average stu
dent; ; . , ,
three times as many non-resident
aliens (4,068) received doctorates in
1976, than blacks (1,213);
higher education institutions in 29
states granted more master's degrees to non
resident aliens than to black Americans.
Obviously we need to seriously address the
areas of access in every regard,
In secondary school programs, as
previously mentioned, there needs to be bet
ter counseling, motivation, and information
provided to black students on higher educa
tion programs. There also needs to be im
proved academiccollege preparation.
These suggestion are not meant to be
panaceas, nor will they resolve all the pro
blems. But we do have the tools, especially at the
federal level, to improve black access to
higher education, and we are making some
modest progress; making better use of these
tools, will obviously increase our success
even more.
NO" TO BLACK ENGLISH
By Bestjida L fcch j
EXECUTIVE CUECTOX, NAACP
0
.W.VAVAV.
Once more, the question of whether so
called "black English," is a distinctive
language that should be taught in school is
rearing its ugly, destructive head. Pushed by
a number of blacks in the late 60s and early
70s as a form of cultural expression, and not
surprisingly supported by some whites, the
ostensible idea behind the drive to use this
language form in public schools is that poor
black children in predominantly segregated
urban areas would learn more readily if they
were taught in the vernacular with which
they were most familiar.
Now, U.S., District Judge Charles W.
Joiner is being, asked to order the Ann Arbor
school system to require black English as a
standard learning tool. Two years ago,
eleven black children who attended Martin
Luther King Junior-High School sued the
local Board of Education in an attempt to
force it to impose black English on the
system.
They claimed that, the system violated
their Civil rights by failing to take ap-
propriate action to help them overcome their
language barrier.
The very idea that black children will be -further
handicapped by any imposed re
quirement to learn their ."three R's,". which .
they so desperately need to compete in a
highly developed society, cries out for re
sounding protest against the black English
drive. The effort to require black English in
P"bIc schools is a sin and a crime that
should be condemned in no uncertain,
language.
No doubt, some of the black English pro
moters will make bundles of money from
books and the development of teaching
materials. They, who are. already well
educated and able to communicate in the
basic idiom of society, can also afford to
vent their egotistical drives for esoteric soun
ding ideas and research projects that are
meant to benefit no one else but themselves.
But, why at the expense of black children?
What about the permanent damage that
black English will inflict on generations of
minority children who will be unable to com
pete in this highly .technical and complex
society. . fi, ' - :
The simple fact, though, is that black
children already know black English. It is a
language form that is learned from birth.
We would wish to believe that what some
folk seek in supporting the black English
drive is to facilitate better communication
between the teacher and student.
:, So, while we are strongly opposed to black
v English being institutionalized, we see no
problem in developing necessary classroom
flexibility to improve comunication between
teacher and student. But the burden of
developing appropriate communication
means should not be at the expense of the
young, who would be rendered incapable of
communicating properly as adults in stan
dard. English, the language . of the
marketplace.
They must be prepared and educated to
function in a society in which proper, written
and spoken English is the measure of ability,
whether in filling out a job application form
or passing increasingly required high school
tests.
, The responsibility for developing this
communication flexibility, therefore, should
be on the paid professionals, the teachers, to
enter the classroom better prepared to deal
with the cultural differences and
backgrounds of their students.
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