Why affirmative action fight still divides us
Written by Black Hot Fire Network on March 7, 2024
Money was tight the day Brian Weber was born in his family’s living room, nine months after his dad returned from World War II.
He would be the fourth brother of five. His father worked at the sugar mill, one of the many plants lining the Mississippi River above New Orleans, before he finally scraped together enough to start a small grocery store.
Weber turned down a scholarship to Louisiana State University to marry his high school sweetheart. The Monday after he turned 18, he went to work at the paper mill and then followed his father into the sugar mill.
Then, in late 1968, a union job opened up at the Kaiser Aluminum and Chemical plant in Gramercy and Weber jumped at it. But he soon had his eye on craft jobs.
At the hulking plant on the east bank of the river, it was the craftsmen – electricians, mechanics, plumbers – who did skilled work, earned more money and had better working conditions.
But there was a hitch. Kaiser Aluminum only hired craft workers with prior experience from union halls in New Orleans and Baton Rouge.
During contract negotiations between Kaiser Aluminum and the United Steelworkers of America in 1974, Weber – a union official – circulated a petition for an on-the-job training program at the plant so new workers could get a shot at those better jobs too.
Those jobs and the controversy over who deserved them would soon change the direction of the country. And the lives of the men who competed for them – men who got hired in 1968 – would shape the working world in ways America has yet to resolve, even today.
At the time, Kaiser Aluminum was under pressure from the Labor Department’s Office of Federal Contract Compliance to develop an affirmative action plan to address the scarcity of Black workers in the almost all-white craft ranks at the plant.
As a provision of the nationwide agreement, the company and the union created training programs at 15 facilities, including Gramercy, and set aside half the spots for Black workers.
Thirteen trainees were selected that year: seven Black and six white. The most senior Black worker had less seniority than several white production workers who were turned down. One of those white workers was Weber, who had more seniority than nearly all of the Black workers chosen.
Weber hadn’t expected to get a spot in the training program – he was pretty far down the seniority list – but he still didn’t think it was right to let Black workers jump the line. After spending hours reading up on Title VII of the Civil Rights Act, which bars any racial discrimination in the workplace, he didn’t think it was legal either.
He filed a complaint with the Equal Employment and Opportunity Commission and, six months later, the 32-year-old factory worker with thinning sandy brown hair and long sideburns drove from his clapboard duplex to New Orleans in search of an attorney to represent him and the other white workers at the plant in a lawsuit.
At the federal courthouse, Weber was ushered into the chambers of a conservative federal judge, Jack Gordon, who was intrigued by Weber’s theory of “reverse discrimination.”
The judge appointed Mike Fontham – a young trial attorney with a bit of civil rights experience who happened to be in Gordon’s courtroom – to represent Weber.
“He predicted the case would reach the Supreme Court,” Fontham said. “He was right.”
In December 1974, Weber sued Kaiser Aluminum and the union, arguing that Congress had explicitly banned racial preferences in training programs. The company and the union argued they adopted the affirmative action plan to remedy historical discrimination against Black workers.
Weber prevailed, first in federal court and then in an appeal. Soon television cameras were trailing him to work and newspaper reporters were camped out on his living room sofa. He gave so many interviews that his voice grew hoarse.
With the enthusiastic support of his white co-workers, Weber welcomed the national spotlight – until David Duke and the Ku Klux Klan showed up in white robes to picket the Kaiser Aluminum plant.
“I never did expect to be in that kind of a situation,” Weber told USA TODAY. “And I never wanted to be.”
Some Black co-workers called Weber “a Klansman without a sheet.” The talk stung Weber, a Christian who prided himself on treating everyone equally.
The question, of course, was just what it meant to treat people equally.
Only a handful of the 273 skilled craftsmen at the Gramercy plant were Black – just 2%.
If the training programs were based strictly on seniority, Black workers knew what it would mean.
“How could we get into the training programs otherwise?” Kernell Goudia, who got a job in the metal instruments department through the training program, told the Washington Post at the time. “We didn’t have the damn seniority.”
In the segregated South, racial discrimination was a fact of daily life.
Poll taxes kept Black Americans from voting, and redlining kept them out of white neighborhoods. Banks refused loans to qualified applicants so Black Americans couldn’t buy houses, build equity, or leave anything for their children to inherit.
Before the Civil Rights Act of 1964 made it illegal to discriminate, private-sector employment was mostly segregated. Good jobs were hard to find. Union halls and hiring managers turned Black people away. Even when Black people landed positions, they were mostly low-skill jobs with no authority or mobility.
Another man at the plant, James Tyrone Nailor Sr., knew all of that. He had been hired in 1968, too, the same year as Weber, but only after applying and being rejected the first time.
James Tyrone Nailor Sr.
Born on the old Armant plantation in Vacherie, Louisiana, where his mother and father cut sugar cane as field hands, Nailor walked to a segregated school while white students like Weber whizzed past on buses. He learned from second-hand textbooks with missing and torn pages.
There was no Black high school in town, so his parents sent Nailor to a school run by the Tuskegee Institute in Snow Hill, Alabama. His mother, then a housewife, returned to the fields to shoulder the cost.
After high school, Nailor joined the Air Force and then moved to California to attend junior college before coming home to care for his aging parents.
Back in Louisiana, he found few job prospects as a Black man. When the aluminum plant opened in 1958, he applied for a job but was turned away at the gate. He ended up doing pick-and-shovel work.
“I tried the telephone company, the power company, nothing. The only thing a Black man could do around here was drive a truck in the sugar cane fields, if you call that skilled, or work as a second‐hand mechanic in a filling station,” he told the New York Times in 1979. “I was depressed all the time. ‘Here I am,’ I thought, ‘digging a ditch, and I’ve completed junior college.’”
Kaiser Aluminum insisted it did not reject Black applicants on the basis of race, but Black workers from poor neighborhoods in the surrounding parishes disputed that.
So did the federal investigators who put pressure on Kaiser Aluminum to hire more Black workers.
Black workers made up 39% of the available area workforce but just 15% of workers at the plant, and even then they were relegated to the lowest-paying, most menial jobs.
Racial intimidation – violence and the threat of violence – and the use of a racial slur were common at the plant at the time, according to Gertrude Ezorsky, a former professor at Brooklyn College and the CUNY Graduate Center who reviewed the federal investigation and wrote about it in the Washington Post.
Black applicants were not “adequately considered” and Black workers at the plant were afraid to bid for better jobs, the investigation found, while white workers with less seniority were promoted ahead of Black workers into foreman positions and the company waived qualification requirements for some workers – all white – for maintenance craft jobs.
Nailor, who had picked up work at local plants as a contractor, finally landed a job at Kaiser Aluminum after a white councilman quietly pulled strings. Every morning Nailor took a ferry from Vacherie, where many Black employees lived, across the river to Kaiser Aluminum.
He had studied to be an electrician in college and he was determined to move up too. He attended a technical school in New Orleans several nights a week and took a correspondence course.
When Kaiser Aluminum began the training program in 1974, Nailor was one of the first Black workers accepted. For two years, he had to take a pay cut and forgo any overtime.
His son, Charles Nailor, 63, says his father wouldn’t talk much about that time, but he could see the strain on his dad’s face. Racial tensions were running high at the plant. Some of his father’s white co-workers wouldn’t speak to him.
As the lawsuit made headlines, Weber became the face of one side. James Tyrone Nailor Sr. became the face of the other.
“He had a rough time. You still had those who didn’t want Blacks to succeed,” Charles Nailor said. “My mom was afraid for my dad. She thought something bad would happen to him by standing up like that.”
With reporters crowding the Nailor kitchen, he held the youngest of his 10 children, James Jr., on his knee.
“When Brian Weber was born into this world, the opportunity was there for him right then. This is the first time I have had an opportunity to really try to get somewhere,” Nailor told The Associated Press at the time. “As Black men, we have nothing. I had nothing.”
New rights, new backlash
Weber had filed his discrimination lawsuit amid a growing backlash against the victories of the 1960s Civil Rights Movement that overhauled the social contract with Black Americans, from voting rights to equal access to education and employment.
Under pressure from the Lyndon B. Johnson and Richard Nixon administrations, federal contractors created affirmative action plans and hired more Black workers, though mostly in low-level positions.
That hiring spree helped Black men and women make progress in the private sector, said Donald Tomaskovic-Devey, a sociology professor who runs the Center for Employment Equity at the University of Massachusetts, Amherst, and co-author of “Documenting Desegregation: Racial and Gender Segregation in Private Sector Employment Since the Civil Rights Act.”
But high-paying blue-collar jobs for high school graduates began to vanish along with the U.S. industrial base. As wage stagnation and high inflation set in, the national mood shifted. One of a growing number of white Americans who believed they were victims of racial discrimination, Weber became a torchbearer for what was a new concept at the time: reverse discrimination.
The outcry spread. The GOP accused the federal government of using racial quotas to promote unqualified Black workers at the expense of white workers.
When Ronald Reagan ran for president in 1980, he campaigned against affirmative action and, while in office, did everything he could to undermine it, he ultimately backed off a plan to abolish it through executive order after major corporations and politicians in both parties protested.
It was an outcry that would last far longer than the Weber case.
That political schism echoes today’s clashes over diversity, equity and inclusion and the resurgent effort by conservatives to obliterate affirmative action in the private sector, says Justin Gomer, associate professor of American studies at California State University, Long Beach, and author of “White Balance: How Hollywood Shaped Colorblind Ideology and Undermined Civil Rights.”
“There has been a very consistent effort to eliminate all of the legacies and legal protections that were won by civil rights activists and organizers in the 1960s,” Gomer said. “What you see now is momentum gaining through the courts to get rid of whatever’s left.”
Reverse discrimination: A Supreme Court ruling
In March 1979, Weber flew to Washington, D.C., to watch the oral arguments before the nation’s highest court.
Given his role in the case, he was something of a minor celebrity. An attorney asked him to sign an autograph and a security guard let him slip in through a side door, bypassing the long line of people waiting to get into the packed courtroom.
After listening to the justices that day, Weber says, it was a heady moment.
Surrounded by a crowd of reporters, he and Fontham gave interviews on the Supreme Court steps. Fontham rushed back to the hotel to see himself on TV but that was the day the Three Mile Island nuclear power plant in Pennsylvania partially melted down and the Weber case didn’t make the evening news.
Weber didn’t need to see the news to know what was coming.
As heady as the day had been, he could hear from the court’s discussion that the justices would not find in his favor.
A few months later, the court ruled by a 5-to-2 vote that private employers could give Black workers special preference for jobs that were traditionally all white to address racial imbalances in the workforce.
The Supreme Court’s majority opinion, written by Justice William Brennan, conceded that the lower courts had followed the letter of the law but, he said, not its spirit.
Congress’s primary concern was “the plight of the Negro in our economy” and Title VII should not be used to prohibit “all voluntary, private, race-conscious efforts to abolish traditional patterns” of discrimination, Brennan wrote for the majority.
Justice William Rehnquist sharply dissented. “Congress expressly prohibited the discrimination against Brian Weber the court approves now,” Rehnquist said.
Leaders of the United Steelworkers of America hailed the ruling, saying it would allow other unions and employers to adopt affirmative action programs without fear of being sued for discrimination.
“If I were sitting in an organization looking to bring a reverse discrimination case, I’d start looking for a better way to spend my money,” Eleanor Holmes Norton, then chairman of the Equal Employment Opportunity Commission, said at a White House briefing.
Benjamin Hooks, then executive director of the NAACP, expressed relief. “Had we lost this case, the cause of affirmative action would have been set back 10 years,” Hook said.
Weber said the only real winners were the company and the union.
“If a company discriminated – and I think companies did – and if the unions discriminated – and the union halls did – they didn’t pay the price,” he said. “The person who ended up paying for it was the individual like myself.”
There was some clamoring in Congress about the Supreme Court ruling, but talk of legislation went nowhere. So Weber boxed up his newspaper clippings but not his hopes.
“When I filed the lawsuit, my only intention was to right an obvious wrong,” said Weber, now a 77-year-old retired labor relations manager living in Florida. “It is my wish and my prayer that one day, that decision will be overturned.”
Forty-five years later, his prayer may be answered.
Affirmative action under fire
Since the Supreme Court ruling in Weber’s affirmative action case, the courts have significantly narrowed the scope of affirmative action in American life.
But it was last summer’s Supreme Court decision to ban the consideration of race in college admissions that opened the floodgates to legal challenges in the workplace, said Sachin Pandya, a professor at the University of Connecticut School of Law.
Writing for the majority, John Roberts, the chief justice, asserted that affirmative action is in itself a form of discrimination. “Eliminating racial discrimination means eliminating all of it,” he wrote.
In a concurring opinion, Justice Neil Gorsuch declared that the same anti-discrimination principles should apply to employment.
The new direction from the court coincides with a new round of change – and backlash against change – in American working life.
After the killing of George Floyd in 2020 forced a historic reckoning with race in America, businesses pledged to make their workforces and their leadership better reflect the communities they serve. But conservative reaction to the Black Lives Matter movement was swift, as groups peppered the top companies with reverse discrimination complaints.
Stephen Miller, a senior White House adviser in the Trump administration, is actively seeking plaintiffs to file more claims.
His organization America First Legal, runs ads on social media platform X: “Have you been denied a job or promotion because you are white, Asian or male?”
The claims take direct aim at the landmark precedent set in Weber’s case.
“The goal of conservative activists ultimately is to get one of these cases to the U.S. Supreme Court,” Pandya said. “Because of that court’s conservative majority, they’re betting that, if they get there, the court will likely use that case to overrule Weber.”
Though he’s not closely following the issue, Weber’s former attorney, who now practices public utility law, believes they will succeed.
“If you are using a racial qualification to advance one race over the other, that violates the Civil Rights Act by its plain wording,” Fontham said. “It’s not even close to justifying it.”
A family legacy
Thanks to the Weber decision, the private sector has had the flexibility to institute affirmative action programs that thousands of companies have used to hire women and minorities, according to Melvin Urofsky, author of “The Affirmative Action Puzzle.”
Of all the Supreme Court’s affirmative action rulings in the 1970s, “Weber might have had the longest reach,” Urofsky wrote.
When the Supreme Court decision was handed down, Nailor rushed home from work to share the news with his wife Grace.
“He told my mom, ‘I’m going to do whatever I can to reach back and help my people move forward.’ He said: ‘It might take just one of us and I could be the one to make a change,’” Charles Nailor recalled. “And he did.”
Getting into the Kaiser Aluminum training program changed the future for generations of the Nailor family.
James Tyrone Nailor Sr. became the only Black electrician out of 37 at the Gramercy plant, earning $25,000 a year with overtime. He added on to his house. He drove a Lincoln. He bought a boat.
The family had money to travel. Charles Nailor remembers taking train trips to see family in Chicago and California neatly dressed in short pants and a bow tie.
He says his father was proud that his children would have the opportunity to do better in life than he had.
Charles Nailor was the top student in his college electrical class in 1980 when he interviewed for a job as an electrician at the Gulf Oil chemical plant in St. James Parish. He was offered the job in January and the plant held it for him until he graduated in May.
For more than 10 years, he was the only Black worker in the craft shop. Charles Nailor became Charles Nailor Sr. and raised a family of his own.
Today he’s a 43-year veteran at the plant now run by AmSty. The plant manufactures styrene monomer, an industrial chemical used to make plastics as diverse as utensils and insulation.
Nailor has held key positions there including auditing its electrical systems. His 38-year-old son Charles Nailor Jr. works at the same plant.
It was not just James Tyrone Nailor Sr.’s descendants who flourished. His life touched the whole community, his son says.
“A lot of those guys benefited from my dad standing up and standing firm to open the doors for other Blacks to get into the craft world,” Charles Nailor Sr. said.
So when his father died in 1986, two days after his 54th birthday, that legacy might have seemed a lasting one. But there’s another part to the legacy, his son says.
Another playing field
Despite the leg up his father got from affirmative action in the 1970s, his career was quickly eclipsed by Weber’s.
Unlike Nailor, Weber never landed a craft job at Kaiser Aluminum. But the way Nailor’s family sees it, the system also never held Weber back. While he was working at the plant, Weber took classes in the evening and on the weekends at Tulane University. He ended up getting an MBA and leading a long career in labor relations.
“They were never on the same playing field,” Nailor said. “Weber was always on a better playing field.”
That pattern was typical in the 1970s. Even as Black employment grew more than at any other point and Black workers moved up into professional and white-collar roles, more white men moved into the managerial ranks.
It remains typical today. Research shows that white men now are even more likely than their grandfathers to be in management despite a diversifying workforce and a growing number of research studies that suggest diverse companies are more likely to outperform those with more homogenous workforces.
A USA TODAY analysis found that white men account for 7 in 10 top executive officers in the nation’s largest companies. About 1 in 7 of these companies had executive teams made up only of white men.
Even at Weber’s former company, progress that began in the 1970s has stalled.
Over the years, Kaiser Aluminum changed hands, filed for bankruptcy, reorganized and now operates as a billion-dollar company. It long ago left the plant in Gramercy, but the most recent government workforce data tells a familiar story. Nationally, even though Black workers are 8.5% of Kaiser’s workforce, they held just 3.6% of craft worker positions. In the management ranks, the numbers are even smaller.
“I still see that barrier between white employees and Black employees at plants up and down the (Mississippi) river,” Nailor said. “We still have to work harder to prove that we can do the job equally as well or better.”
Nailor says that’s why Black people need the opportunity to prove themselves. Reversing the Weber decision would take that away and set back the cause of equality for decades to come, he said.
“Equality,” Nailor said, “is the key thing.”
