This morning, the Arkansas Legislative Black Caucus met with Sen. Dan Sullivan (R-Jonesboro) regarding Senate Bill 71, his bill to end affirmative action for public entities like school districts, city government, public universities or state agencies.
Sullivan was selling the line that his anti-affirmative-action bill would end “state-sponsored discrimination” in Arkansas. Nobody was buying it.
In reality, Sullivan’s bill would end programs aimed at providing opportunities for Arkansans who have historically been denied access to those benefits. While Sullivan was quick to admit that discrimination continues to exist in Arkansas, he apparently views these opportunity programs as the biggest and most pressing form of discrimination facing our state.
SB71 has already passed out of the Senate Judiciary Committee, but Sullivan said today that he promised his Senate colleagues he would wait at least a week before presenting it for a vote of the full Senate in order to meet with and hear the concerns of legislative and community groups.
If today’s meeting with the Legislative Black Caucus was any indication, Sullivan seems unlikely to really listen to these concerns. Many members of the Black Caucus urged Sullivan to withdraw or hold his bill until he fully understands the harm it will do. But as Rep. Fred Allen (D-Little Rock) observed in today’s meeting, it appears Sullivan has already made up his mind.
The bill states, in part, that “The state shall not discriminate against, or grant preferential treatment to, an individual or group on the basis of race, sex, color, ethnicity, or national origin in matters of state employment, public education, or state procurement.” It would, among other things, end affirmative-action programs in higher education, meaning that race could not be used as a factor in admissions or for recruitment and selection of faculty and staff.
Sullivan noted that the United States Supreme Court seems poised to strike down affirmative action in university admissions nationwide in two cases heard last October involving Harvard University and the University of North Carolina. Those institutions, like many others around the country, use race as one factor in a holistic admissions process that also looks at students’ socioeconomic status, geographic location, family history, academic performance, volunteerism, personal story and extra-curricular activities. Schools that use race-conscious admissions policies do so because they seek to create a more diverse and inclusive educational environment (promoting diversity is the only goal that the Supreme Court has allowed for the use of affirmative-action plans; goals aimed at remedying historic patterns of racism, discrimination and oppression were rejected).
Sullivan’s bill goes far beyond the affirmative-action plans that the Supreme Court may soon strike down. The bill removes the legal requirement that individual school districts and the Department of Elementary and Secondary Education develop plans for recruiting and retaining diverse teachers and administrators. It would repeal the section of the Arkansas Code aimed at helping minority students stay in college and graduate.
SB71 would also repeal Arkansas’s “Equal Employment Hiring Program,” which requires every state agency, board, commission, department, and institution of higher education to “pursue a comprehensive equal employment hiring program” designed to increase minority employment in state government. Not only does the bill prohibit “preferential treatment” based on race, sex, color, ethnicity or national origin, it also creates a private cause of action for people who believe that their rights were impacted due to a violation of this bill (i.e., they think they were passed over for admissions, hiring, advancement, contracting, or any other benefit based on affirmative action). With a private cause of action, people who feel their rights were violated can sue.
Rep. Jamie Scott (D-North Little Rock) asked Sullivan to confirm that his bill would prohibit (and even criminalize) local policies such as the Little Rock School District’s “Minority Spending Goals” (LRSD’s policy states that the district works at “ensuring that responsible minority businesses enterprises (MBE) and labor surplus area firms (LSA) are afforded a fair and equal opportunity to participate in the procurement process.” To that end, the district has established a goal that at least 10% of its overall expenditures should go to minority-owned businesses and at least 10% should go to women-owned businesses). Sullivan responded, as he did to many of the legislators’ questions, simply by repeating that he believes that discrimination is wrong.
Sullivan relied heavily on Chief Justice John Roberts’s quote that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” and Justice Sandra Day O’Connor’s 2003 prediction in Grutter v. Bollinger that “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in student body diversity] approved today.” Sen. Linda Chesterfield (D-Little Rock) reminded Sullivan that quoting Supreme Court justices “doesn’t carry the same weight for us,” since the U.S. Supreme Court also decided Dred Scott, holding that African-Americans could not become citizens of the United States, and Plessy v. Ferguson, in which it upheld “separate but equal.”
Sullivan claimed his bill is necessary because he sees a trend in more and more groups claiming “aggrieved status” and seeking preferential treatment. He also argued that Arkansas needs to establish a metric for determining when affirmative-action programs should end. Sen. Reginald Murdock (D-Marianna) countered that SB71 addresses neither issue. Instead, it completely ends programs designed to help level the playing field for women and minorities.
Rep. Fred Allen (D-Little Rock) and several others admonished Sullivan for not coming to members of the Black Caucus to privately discuss this idea before filing his bill, repeatedly telling him that he did not understand the discrimination that Black Americans still face and the harm that this bill will do. Sullivan, who may not have realized that the legislators were trying to be charitable when they gently suggested that he did not fully grasp the damage that his bill would do, vocally took offense to those comments, arguing to a group of Black lawmakers that he does, in fact, understand racism and discrimination just as much as they do.
Rep. Vivian Flowers (D-Pine Bluff) questioned why Sullivan chose to remove all preferences based on race, ethnicity and sex, but not the preferences currently in Arkansas law for military veterans. Sullivan, caught off guard, said that he thought that was a valid point. He then invited Flowers to propose an amendment, and she clarified that she did not think the bill was needed at all and should just be withdrawn rather than amended. In fact, she said, we need to do a better job enforcing the existing law.
In one of the more illuminating exchanges, Sullivan cited Arlo Washington, the president and CEO of People Trust Community Loan Fund, as an example of a Black Arkansan who proved that affirmative-action programs aren’t necessary. In response, Flowers and Scott pointed out that Washington had benefited from some of the opportunity programs Sullivan’s bill would end.
Sullivan was defiant in response to the lawmakers’ personal stories about how affirmative-action programs had made a difference in their lives or their community. Sullivan asked the Black Caucus why, if ending discrimination was so important to them, they had not already filed a similar bill. Sen. Fred Love (D-Little Rock) asked incredulously, “How are you going to ask people who have been discriminated against to bring a bill to end discrimination?” He implored Sullivan to withdraw the bill, stating, “You can say that you understand, but you do not understand the plight of my community.” Love summed up the Black Caucus’s objections to the bill by advising Sullivan that, “this bill does not end discrimination, it only widens the gap.”
If today’s meeting made anything clear, it’s that Sullivan and the Black Caucus have very different definitions of “discrimination.” Members of the Black Caucus attempted to explain to Sullivan that their communities experience real and tangible forms of racial discrimination that Arkansas’s affirmative-action policies help mitigate. Sullivan, on the other hand, calls his bill “An Act to Prohibit Discrimination,” but he probably should have replaced the word “discrimination” with the word “opportunity.”