Post No. 176: A Peek into the Affirmative Action Trial of the Century

© 2009 and 2011, the Institute for Applied Common Sense

Today marked the first day of trial in a landmark class action lawsuit in Los Angeles in the United States District Court for the Central District of California.

The plaintiffs, representing all African-American citizens who failed to receive the benefits of affirmative action programs and policies commenced in 1961, allege that the defendants, who were direct beneficiaries of such policies, kept all financial and other benefits, and failed to share them with the African-American population at large.

Federal Judge Lance Ito, having been roundly criticized for allowing the press and media into the courtroom during the O.J. Simpson criminal trial, chose to deny access to all press and media outlets. Last week, the media sought a writ of mandamus to force Judge Ito to permit them into the courtroom. The Ninth Circuit Court of Appeals out of San Francisco summarily denied the petition this past Friday.

However, certain friends of the Institute have acquired information, from sources who wish to remain anonymous, which provides us with some insight into this ground-breaking litigation.

The plaintiffs, led by black descendants of former Senator Strom Thurmond, claim that following the implementation of affirmative action policies, only a small percentage of African-American individuals benefited from set-asides and government contracts, preferential hiring, and admissions to institutions of higher learning.

They further argue that the policies and programs were designed to address centuries of slavery and disparate treatment under Jim Crow laws, and thus were to benefit the African-American community at large and not just certain individuals who fortuitously were in the right place at the right time.

Elliott Spitzer, counsel for the plaintiffs, met with reporters outside of the federal courthouse this morning before testimony began. “We plan to show two things. First, that the beneficiaries of the policies and programs at issue were overwhelmingly individuals who were already doing fairly well in the black community, and were primarily from the black middle and upper classes.

“Second, we plan to show that once these beneficiaries of affirmative action entered the workplace, established their respective businesses, entered Corporate America, or otherwise benefited from these programs, they failed to share the financial and societal benefits with those less educated and less fortunate. The poor state of the black community and the high incidence of poverty and crime are evidence of their failure to pass on the benefits.”

Spitzer called as his first witness (on a hostile basis), former Republican National Committee Chairperson Michael Steele. He traced Steele’s financial history since completing law school, and questioned him intensely about what Steele had given back to the African-American community, both financially and otherwise.

Spitzer elicited testimony from Steele to the effect that when Steele was in college and law school, he and his fellow black students reveled in black pride, and the need to empower the black community. Spitzer was able to show that once Steele graduated from school, he began his rapid ascent professionally, including moving to a predominantly Caucasian suburb, removed from the problems of inner-city blacks.

“Do you feel that you have any responsibility to Dr. King and other civil-rights leaders, to pass on your wealth and good fortune to those in the black community less fortunate, and at a minimum, live amongst poor blacks?”

The question drew long stares from the predominantly Hispanic jury, while they awaited Steele’s response. The Judge adjourned the trial for the day before Steele could answer.

In speaking with Rod Blagojevich, counsel for the defendant beneficiaries of the programs and policies, he noted, “There is no legal basis upon which this suit can be brought. There is no legal requirement that the beneficiaries of affirmative action share their good fortune with other members of the black community, or engage in conduct beneficial to the community.”

Spitzer concedes that there is no legal precedent for his position, but argues that that there is an equitable and moral basis for his clients’ suit. He contends that the legal doctrine of quantum meruit is applicable, in that the defendants have been unjustly enriched.

Spitzer further claims that since Jim Crow was not outlawed until 1962, it is too soon for those fortunate enough to have received the benefits of remedial programs and policies to pursue their selfish desires and needs. He suggests that perhaps 150 years should pass before the beneficiaries are relieved of their ethical and moral responsibilities to the other members of the black population who were not fortunate enough to receive the benefits.

Judge Ito’s prior rulings in unrelated cases may provide some insight as to his leanings. He previously expressed that in his opinion, both Jim Crow laws, which established segregation by law, and the Civil Rights cases and legislation, which established integration by law, were inappropriate exercises of governmental power, despite strained legal arguments to the contrary. His position appears to be that the decision to associate, or not associate with, others should be a personal decision, no matter what the environment, and that enforcing or addressing segregation or integration in any manner should be left to the hearts and minds of individual citizens, and are not the province of governmental entities, no matter the branch.

Furthermore, he contends that governmental interference in any way actually hurts race relations.

The Justice Department, under the Obama Administration, has chosen not to file briefs in support of, or in opposition against either position. According to a Justice spokesperson, the President has not contacted Justice regarding his position. Observers note that during the Presidential campaign then-candidate Obama (as well as the First Lady) were referred to as affirmative-action beneficiaries who lacked the academic skills and sophistication warranting their admission into the high-caliber educational institutions where they matriculated.

The trial is expected to last 2 years, longer than the O.J. Simpson trial over which Judge Ito presided.