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Kai Wright: This is the United States of Anxiety, a show about the unfinished business of our history and its grip on our future.

CeCe Valencia: Adidas has pledged that at least 30% of new employees hired in the US will be Black or Latino.

Sable Badaki: Now, you're looking to fill those open positions with a Black person to now show everyone that your organization is not racist.

President Barack Obama: There have been times where I think affirmative action has been viewed as a shortcut to solving some of these broader long-term structural problems.

Krystal Ball: Seems like it's about making affluent white people feel good about themselves, much more so than it really is a project of justice.

Ted Shaw: We can't get to a society that is post-racial before we get to a post-racist society.

Nikole Hannah Jones: It's not about taking someone's job that they are old. These are not white jobs, these are jobs.

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Kai Wright: Welcome to the show. I'm Kai Wright. I grew up in the 80s, which was this period in America when it felt like the hottest thing for people to sit around and debate was this notion of so-called "reverse racism." It seemed like white people and particular middle-class, quite comfortable white people were just obsessed with the idea that it's possible to go too far with racial equality, and that there were all these under-qualified Black people out there taking opportunities away from more talented white people.
There was that word, "quotas" people spat it out like an obscenity, "racial quotas." Even people who supported affirmative action, they would be careful to say, of course, I don't mean quotas or anything like that. Honestly, it was all confusing to me, both emotionally and intellectually, because these just felt like deliberately oblivious arguments. Even as a kid, I couldn't figure out what white people were actually so worried about. Affirmative action has never been a policy we've fully embraced in this country. Yet, very soon it's highly likely that the Supreme Court will do away with even the small provisions we do have.
The current case centers around how Harvard University uses race as a factor in admissions. It's a battle that's being waged by Donald Trump's personal attorney. If the court chooses to hear it, which let's be honest, it most likely will, the case will be decided by an extreme far-right court with three highly conservative justices selected by Donald Trump. How did we get here to where affirmative action a policy ostensibly meant to right the wrongs of centuries of slavery and racist oppression is treated like a dirty word.
This week, we're going to dive into that story by revisiting a story we told last year about another Supreme Court case. This one didn't directly involve education or university admissions, but instead focused on employment. It goes a long way in illuminating how we got here and why we don't see more companies actively adopting policies explicitly to hire promote Black people, why that's just so hard to do. We're going to devote the whole hour to this story. It's one that begins almost 50 years ago in a small town on the banks of the Mississippi River.
Reporter, Marianne McCune begins by tracking down some of the people who were intimately involved in what happened a half century ago.

Marianne McCune: There's this handwritten list that I’ve been studying, it's neat cursive, online paper, and it's of all the workers at an industrial plant down in Louisiana, who in 1974 bid for a spot in a training program.

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Marianne: It was a tiny training program, but it ended up at the center of this huge legal fight that went all the way to the Supreme Court.

Newsreel: The Supreme Court heard arguments today on the most important case before at this term, one involving so-called reverse discrimination in employment, Fred Graham has-

Marianne: On each page of this list there are two columns of names, 50 something people vying for a handful of those training spots, and there are stars next to the names of the few Black applicants.

Newsreel: -half of the jobs had been set aside for Blacks regardless of seniority.

Marianne: I wanted to find and talk to some of the Black men who bid to be a part of this training, so I started going through the list, but this was a long time ago. John Jasmine, I find his obituary. Kernell Goudia same thing, and then I come to Jim Nailor. He's mentioned in some of the news reports from that time.

Newsreel: Nailor believes that Weber had an advantage from birth because he was white.

Marianne: I find Jim’s wife, she tells me he also died a while back, but she says, "You should call my son."

Charles Nailor: Okay, I’m Charles Nailor Sr.

Marianne: She says, "He remembers everything that happened."

Newsreel: Nailor can now earn up to $25,000 a year compared to 18,000 to 20,000 for Weber.

Charles: I remember the big bright lights they had set up in the house, and everything shining on my dad. All the people in the community back then, they were, "Man, your dad is on the news," and here it is we're looking at my dad on TV.

Nailor on Newsreel: We're able to have a little more food. In general, we just have a better bank account.

Newsreel: Nailor comes from across the river on the Western Bank, where more of the Blacks live, and where he was born on the old Armant plantation.

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Jim: We would get second hand-

Marianne: Let me paint a picture for you of the Nailor Family before all this got started. They lived in Louisiana, west of New Orleans, where the Mississippi River winds back and forth through this moist soil that when Charles’s grandparents moved there was all plantations. That's where they were living and working when Charles’s dad was born in 1932.

Charles: You would think the older Blacks at that time wouldn't have the education to read, but my grandfather and grandmother really could read good.

Marianne: His grandfather managed to become a supervisor at the plantation's Sugar Mill, and right after Charles’s father was born, they were able to buy their own small piece of land and build their own house.

Charles: They didn't have the running water, and all that stuff back then. I remember out in the front yard, and it still had the old well where you can pump the water.

Marianne: The Nailors managed to send Charles’s father, Jim, all the way to Alabama to a Black high school. Why did he have to go away for high school?

Charles: I think, from what I gathered, that 8th grade, that's the highest grade that he could go into being Black at that time.

Marianne: By the time Charles was born, his dad had been to junior college, joined the air force, and come back home to build a house next to his parents. Charles’s dad was doing contract work at the industrial plants, there were more every year being built on the riverbanks at the time. Charles’s mom was shucking oysters when she could, everyone in the family was working.

Charles: My grandmother, she would sell cold cups, the frozen cup, make money from that, make the corn candies, freeze pop.

Marianne: It's around this time that something big happens for the Nailor family. Charles’s dad, Jim, lands a coveted job at the aluminum plant on the other side of the river. It's called Kaiser Aluminum. Do you remember when your dad got the job at Kaiser? Was it a big deal?

Charles: Yes. Back then, it was important. If you were a Black man to get on that Kaiser, that was the plant to work at. A lot of guys said, "Man, your dad work at Kaiser? Oh, wow."

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Marianne: Jim was about 36 years old, and every morning he'd take a ferry across the Mississippi from Vacherie, where the Nailors and many of the Black employees lived, to the aluminum plant. Working at Kaiser meant they were union members, it meant security, health insurance, and weeks of paid vacation. Charles remembers the day his dad, a couple of years after starting, bought their first new car.

Charles: A '69 Chevrolet Kingswood station wagon, the blue with the wood siding on it, I remember that car well. When we got home with that, my mom, she didn't know what was going on.

Marianne: What did she do?

Charles: Got all excited, the first thing she wanted to hop in, and we just had to go take a ride. Seven of us rode in the car. The first seat in the back would turn the opposite way. I remember my baby sister, she would say, "I can't ride back there, I get real dizzy riding back there." I remember stopping at a store, he would buy us a soda pop, and one of those thick gingerbread cakes.

Marianne: That sounds fun.

Charles: Yes. It was at that time [laughs]

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Marianne: What did he say about how it was at the plant? Did he ever talk about discrimination or racism?

Charles: Oh, yes. I couldn't believe that. At the plant where your Blacks would go in one restroom, your the whites go in another restroom, even the drinking fountain. I used to always ask myself that question, "Why do dad have to use a different restroom?" They had some evil one at the plant that wanted you to fail, and stuff like that. I remember a couple of times he's coming home mad, but he wouldn't elaborate on it.

Marianne: So many of Charles’s memories of his dad are about pushing against that racism. Beyond what Black people were allowed to do during those years, Jim was not going to stop at that entry-level job he'd landed. He wanted to keep moving up.

Charles: I remember him practicing on his old typewriter that he used to have. I think they wanted him to be working in the storehouse or something like that. They told him he had to type so many words per minute and he aced that. They couldn't believe it but at that time, I think he shared with them, "I still don't want that job. I want to be a craft person."

Marianne: A craft person. The craftsmen at the industrial plants were the people doing specialized, skilled jobs; the repairsmen, the plumbers, carpenters. They had better pay than the job Jim had, better benefits, better hours.

Charles: In your craft, there were mostly all whites in the craft field.

Marianne: Did he talk about that?

Charles: Yes. One thing he shared that he will be in the craft field. He will break that barrier of having more Blacks in the craft.

Marianne: Charles's dad aimed to make it to the very highest rung of the crafts jobs. He wanted to become an electrician. Jim had already studied to become an electrician in junior college and he'd been working all along as one, but he was never able to get that stamp of approval of a trade union, so Kaiser hired him as a laborer.

Charles: He said, "I want to make sure that maybe you in the future that working at Kaiser or some other plant, that I'm opening the door and I'm willing to sacrifice to make sure that you, or any other Black, have that door open to get in whatever field that they do not want you guys to get into."

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Marianne: In 1968, soon after Jim Nailor went to work at Kaiser Aluminum, a young man just a few years out of high school started at Kaiser too.

Brian: Can you hear me, Marianne?

Marianne: His name is Brian Weber and he lived across the Mississippi river from Jim in the white section of a town called Reserve. Is that better?

Brian: Yes, it is. I got it.

Marianne: Oh, great. His dad had a grocery store which meant everyone knew his dad.

Brian: That made things different for us because half of his customers were Black. I went out with him when I was a teenager and we would deliver groceries. I remember one particular time I went out with the driver, his name was Billy and the Black people there said, "Come on in, have some iced tea. Just like old friends." It wasn't like any kind of a racial thing, except for the fact we didn't go to the same school, we didn't go to the same church. In hindsight, it was a little strange.

Marianne: A few things to know about Brian. He loves music, rhythm and blues. He remembers listening to the radio every night in the room he shared with three of his four brothers.

Brian: That would happen all night long.

Marianne: He was really good at math in school. He was even offered a small scholarship to Louisiana State University, but he decided to turn it down. Says he had a sweetheart and he wanted to get to work.

Brian: I had my mind on marriage and starting a family.

Marianne: He works his way through a couple local factory jobs and then, just like Jim Nailor, he lands a job at Kaiser Aluminum. He also starts as a laborer.

Brian: Very dirty and very hard work.

Marianne: He soon becomes a lab tech running routine tests on the plant's chemicals. That's not a crafts job. He's still considered one of the unskilled workers but it's a chill job.

Brian: We had it made because nothing is rushed in the lab. We would have crossword puzzles and somebody would cook something on one of the hot plates. We had french bread and butter in the morning.

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Marianne: At this point in the early '70s, the operations side of the plant, the laborers and the unskilled workers, overall, they're almost half Black, half white. They pretty closely reflect the region and almost none of them, Black or white, are getting to move up the ladder into the crafts jobs. That's because Kaiser is hiring from outside the company for those jobs, which is really making the laborers mad.

Brian: We, meaning operations, laborers, tech people, we wanted to get into the craft skills. I can tell you, Marianne, we didn't really look at it as a white group. We looked at it as a craft position that we couldn't get. We were the Blacks and the whites who were not craft people and we wanted those jobs. We wanted to get into them and make better for ourselves.

Marianne: At the very end of 1973, Brian's Union, the United Steel Workers, is heading into a week-long contract negotiation with Kaiser Aluminum. It's in New York and Brian, who is starting to move up the ladder in his local, starts a petition to allow laborers this chance to move up.

Brian: When we passed the petition we had no problem getting Black signing the same petition that I signed.

Marianne: Brian dug the petition out of a closet for me. It's typed out in capital letters urging the union leaders to do all within their power and the word, "All" is underlined.

Brian: We send it up to New York to convince the union to really fight for it on the job training program.

Marianne: They came back with a, "Yes." They got it. They said, "Admission will be based on seniority like all things union". That means those who've been on the job the longest will get first dibs, except there's one caveat, there would be two lines of seniority.

Brian: If you got one person that's white, the next one has to be Black. Next one could be white according to seniority, the next one has to be Black. We were accustomed to the seniority system. That's what the union stood for, so that didn't sit too well with a lot of people.

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Kai Wright: What made them decide that they would go that route?

Marianne: It turns out that, at that moment in time, this is something the company really wanted to do. I don't mean the training because any manager will tell you trainings are really expensive and they're a pain. They saw this as a chance to crack a problem that they had been coming up against for a long time. They truly wanted to figure out a way to get Black people into the crafts.

Dennis: Everybody knew that Blacks and women weren't in certain jobs because they were Blacks and women.

Marianne: Dennis English was in charge of labor relations at Kaiser, so he's like the HR guy.

Dennis: Most companies had a conscience to do the right thing.

Marianne: It's also something that the federal government has been pushing really hard for for almost a decade.

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Newsreel: Congress passes the most sweeping civil rights bill ever to be written into the law.

Marianne: This training program came about 10 years after the Civil Rights Act of 1964. That's a piece of legislation that was focused on rooting out discrimination in all parts of our society.

Lyndon Johnson: This Civil Rights Act is a challenge to all of us-

Marianne: President Lyndon Johnson.

Lyndon Johnson: -to eliminate the last vestiges of injustice.

Marianne: He signed it with, I can't remember how many pens, but there's footage of him signing it with all these pens and handing them to people.

When it comes to employment, we're talking about Title VII, which says that employers cannot discriminate on the basis of race, color, religion, sex, or national origin.

Newsreel: Integration leader, Martin Luther King receives his pen as a gift…

Marianne: Then, a year after the Civil Rights Act is passed, there's also an executive order from President Johnson. This order says that any company that does business with the federal government must take "affirmative" action to ensure equal opportunity and they deputize all these agencies to actually enforce this.

Kai Wright: You've got the existing legislation in there, you've got a federal government that is using its enforcement power, and particularly the power of the purse, it sounds like because the whole point is, "If you want a federal contract, you've got to follow these rules."

Marianne: Exactly right. Dennis English, the HR guy at the plant, he told me that every year he would prepare this binder full of information about the race and gender of his employees, and everything they're doing to try to bring in Black people and women.

Dennis: It was like 8, 10, 12 pages high in this huge booklet. We had to promise the government we would do this, and that, and the other, and deal with these people and advertise here.

Marianne: There's this one compliance guy Dennis remembers. He says he was from the Department of Defense. He would come and sit down across from Dennis in his office and start flipping through the pages of that binder to see how they were doing.

Dennis: We'd say hello and he'd come into my office. I'd give him a copy of this big affirmative action plan. This is a white guy. He would sit there, take out a sheet of paper, read it, wad it up, and throw it on the floor and tell us we were incompetent. That we weren't doing nothing and we were biased. I'd sit there for three or four hours and listen to stuff every year.

Marianne: What was he saying?

Dennis: He was saying, "You aren't doing enough. You weren't hiring enough Blacks. You aren't promoting enough Blacks."

Marianne: He would literally crumple up your piece of paper and throw it on the ground?

Dennis: Oh, my God, he would read a few things and say, "This is a bunch of crap," wad it up and throw it on the floor. By the time he left, I had a floor full of paper.

Kai Wright: Wow. It's just hard to wrap my head around that, that there would be a human in the Defense Department who was enthusiastic about the idea of affirmative action to the point that he would rip out pages of your report and throw it at you.

Marianne: Right. We will get to, later, why it's hard for you to wrap your head around that. [chuckles]

Dennis: He wanted more Blacks in every single arena in our plant.

Marianne: What was the threat when he was crumpling up the papers?

Dennis: That the government would take all government programs away from Kaiser Aluminum, that was, "We're making aluminum for all the airplanes, for tanks, for bullets, for shells, for guns. We're doing all that work in our company. They could hurt you really bad if they wanted to." It's hard to hire minorities at such a rate that you could meet the goals they expected us to meet. We would advertise and we listed three, four, five different bankers.

You could not go out in those days and hire skilled craft trade people off the street that were Black. All the trades unions who had their own training and apprenticeship programs they didn't accept any Blacks so there were no Black-trained skilled craftspeople, period. We realized with or without the government that we weren't going to get Blacks and females in our crafts unless we did something different.

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Marianne: That something different was the training program that Brian Weber was pushing for. Who was selected for that program? Jim Nailor. Charles Nailor's father. Who is not selected? Brian Weber.

Kai: Brian Weber's pissed?

Marianne: Right.

Kai: Coming up, what Brian Weber does with his frustration and how that choice has shaped the debate over workplace equity ever since. This is the United States of Anxiety and this week, we're telling a story about the curious legal history of affirmative action. I'm Kai Wright, we'll be right back.

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Kai: Welcome back. This is the United States of Anxiety, I'm Kai Wright. This week our reporter Marianne McCune is telling us a story about how the whole debate over affirmative action in the workplace got so fraught. It's a story of one Supreme Court case in the 1970s that centered on whether a private company, an aluminum plant in Louisiana, whether it could prioritize Black employees. When we left off a white employee at the plant had taken issue with a training program that set aside spaces for Black workers. Marianne explains what happened next.

Marianne: In the early 1970s this young lawyer named Mike Fontham had just passed the bar and he was trying to get some trial experience. He started taking appointments at the federal courthouse in New Orleans.

Mike: Well in 1974 I was 28, skinny and I had a beard. Not long hair but pretty scraggly.

Marianne: Now his hair is short and white but at the time he had sandy blonde curls and he was trying civil rights cases. He represented a Black employee in a discrimination suit, prisoners at a local jail, and one day a conservative judge named Jack Gordon sent for him.

Mike: Gordon called me into his chambers and he said, "I'm appointing you to handle this case."

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Marianne: Brian Weber was standing there. His own hair was darker and straighter but a little bit shaggy too. For weeks he'd been making calls, looking up laws in the library, talking to other workers at the plant and he decided to file a civil rights lawsuit himself.

Mike: I told him what I wanted. I said look, "I think I'm the victim of discrimination according to the law of dah, dah, dah." I was convinced the law was very, very clear and said that no one would be discriminated against because of race. It didn't make exceptions or anything. It was that we were all on the same sheet of music. I was saying he was a little enthusiastic. He never handled a reverse discrimination case. He was mostly handling cases for Black people. It might go somewhere.

Marianne: Mike Fontham says he listened to Brian tell his story and he seemed calm, collected not like some fired up bigot.

Mike: He was representing or saw himself as representing the white employees who had more seniority and were being passed over.

Marianne: Brian actually had nothing personal to gain from the lawsuit.

Mike: He would not have gotten one of the training jobs.

Marianne: There were dozens of people on the list for a few spots and Brian was three-quarters the way down. Even if they were accepting only white people Brian wouldn't have gotten in, but he was one in a long list of white employees who were passed over in favor of a few Black applicants.

Mike: He was in principle, opposed to it. He wanted to do something about it and he wouldn't have to pay me because I was appointed.

Marianne: Mike remembers judge Gordon telling him.

Mike: He said, "This case is going to go to the US Supreme Court." He was pressing it.

Marianne: Brian Weber's case against Kaiser Aluminum and his union goes to trial in Judge Gordon's New Orleans courtroom.

Dennis: It was like the class A of courtrooms. Big and beautiful wood and polished, this. We spend a lot of money in courtrooms in this country.

Marianne: Dennis English testified at Brian's trial. He's that HR guy who had to fill binders each year with evidence that Kaiser was employing enough Black people and women. He was worried about this lawsuit because the way he saw it privately--

Dennis: This agreement between the steelworkers and Kaiser was an agreement on the face of it to discriminate in reverse against white males. That's exactly what it was and we all knew that, but the only way to get Blacks or women into our crafts was to do something like that under the guise of affirmative action because there was no other way to do it. Our thinking was we had to win this case because if we didn't win this case, affirmative action was dead forever.

Marianne: Did you think that you were right? That your side was right?

Dennis: Well, I thought two things and I've been thinking about that this week. I've always thought two things. What we did was a true attempt at affirmative action. Giving minorities and women opportunities that they would not otherwise get. I feel that way today. We should offer opportunities. On the other hand, we were discriminating against white males.

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Kai: That is such a weird idea.

Marianne: By that time they were a lot of people who were already feeling that way. This debate in the case against Kaiser Aluminum and this idea of reverse racism, these same arguments were bubbling up across the country by the 1970s.

Kai: It's really about the whole Civil Rights era at that time. We had this huge debate as a country over the Civil Rights Act and the Voting Rights Act. The people got behind that in large numbers because they'd seen Dr. King and those kids getting beat up but once it moved into actual laws and policies, the polling data at the time showed that white people very quickly started saying, "Whoa, whoa, whoa, this is moving much too fast."

Marianne: Right and it's very similar to the backlash that happened during a period we have talked about many times in our show. The period of reconstruction. The biggest example of this fight was over the proposal to create a Freedmen's Bureau. The federal office with the mission of providing all kinds of aid to formerly enslaved people whether it's land, clothes, education. In these debates, the lawmakers who opposed the Freedmen's Bureau say they should not have to pay for a program to help another group.

Kai: Right away. People are still literally dying at war over slavery, and they're like, "No, no, no."

Marianne: Here's one of my favorite lines. "We have legislated a great deal for the negro and I think we ought to give a day or two for the white man." [laughs] 1864.

Kai: Yes, give them a day or two.

Marianne: I do want to make clear in Brian's case it's not about what the government is doing. This is about what private companies are doing. Of course, they are being pressured by the government but both Kaiser and the Steelworkers Union are saying that they are doing this affirmative action program voluntarily.

Kai: Right. Then what did apply to private institutions at that point?

Marianne: The law that applies to Kaiser's affirmative action program is the Civil Rights Act of 1964. We talked about it. It's Title VII of that act that says, "You cannot discriminate in employment on the basis of race" but then, president Johnson adds this executive order and it's a policy that he's pushing in conjunction with the law. It says, "To all companies contracting with the government, you have to take affirmative action." I think it's an interesting phrase because it's similar to the idea of anti-racism. It's like, "You cannot be racist by doing nothing. You have to be anti-racist." Affirmative action is saying, you can't just say, "Okay, everybody's free. Everybody's got the same opportunity," and have that work by doing nothing. You have to take affirmative action to make it true.

Kai: To operationalize the Civil Rights Act you've got to be affirmative.

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Newsreel: There are a number of cases already in the legal pipeline to answer these questions and build the body of law governing reverse discrimination. One such case comes from Louisiana and Bruce Hall has that story.

Bruce: 31-year-old Brian Weber is a lab analyst for the Kaiser Aluminum Corporation. He is suing the company and the United Steelworkers Union in a reverse discrimination case that many say-

Marianne: The news really starts paying attention to Brian Weber's lawsuit after he wins. Brian wins in the District Court and then he wins again on appeal in the Fifth Circuit. Now the newspapers are calling up his young lawyer. The T.V cameras are coming out.

Mike: Sure it was in the news. It was all of a sudden a precedent on the use of quotas so it was clear at that point that it was going to have significant impact.

Marianne: Brian Weber admits he was having a good time.

Bruce: Weber challenged that calling it reversed discrimination.

Brian: At 5:30 in the morning, a call from a Baltimore radio station to be interviewed. I thought it was unfair to me because here I was being bypassed because of my race. A station from Germany sent their crew from Germany, "Come to Kaiser Plant. Interview me at the Kaiser Plant." When I in fact hadn't done anything to deny this particular person or any one of the Black employees any rights.

Bruce: The lower courts agreed with Weber in a most controversial ruling the Court of Appeals held that where employers have-

Brian: I don't know. I enjoyed it.

Marianne: There was one afternoon during this time where several workers at the aluminum plant told me that David Duke and members of the Klan came and protested outside of the plant. That was obviously scary for a lot of people. Brian Weber says that he was on the job and he heard they were out there and drove a plant vehicle around to the gate to peer out and see them.

Brian: Didn't stop. Didn't wave. Didn't anything just passed and went back into the site. It was a strike against us because we didn't want negative publicity.

Marianne: Of course, the T.V cameras went to Jim Nailor's house too. That's Charles Nailor's father. The one who was chosen for the training program to be an electrician.

Newsreel: Nailor believes that Weber had an advantage from birth because he was white.

Marianne: When Charles talks about these reporters coming to his house and talking to his father, it's also just this point of pride. He remembers television reporters setting up their lights in his kitchen and filming his dad holding their youngest, talking about the differences in opportunity that he and someone like Brian Weber had.

Jim: Most of the Black kids would have had to go out to the field and wait to try and help their mother and father because they had a lot of kids. Had this guy, who wanted to become an electrician, an instrument man or what have you? when he borne into the world he could have been anything he wanted to. When I borne into the world I had nothing to look forward to. Let's face it, the opportunity wasn't there for me.

Walter: Walter Cronkite. Good evening, the Supreme Court agreed to hear the emotionally charged issue of reverse discrimination in jobs.

Marianne: It's now March of 1979. As the Supreme Court hearing approaches, you start to see activists and also federal officials worrying that this case has the potential to bring down affirmative action completely.

Newsreel: Eleanor Holmes Norton, chairman of the Equal Employment Opportunity Commission said a Weber victory would be devastating.

Eleanor Holmes Norton: If Mr. Weber were to prevail it would have the effect of stopping most voluntary affirmative action and that would be devastating.

Marianne: It is the 28th of March when Brian Weber and his lawyer Mike Fontham get their hearing with the Supreme Court of the United States.

Brian: Mike was nervous.

Mike: Yes, I was nervous.

Brian: His wife was really nervous.

Mike: You're about to appear in the Supreme Court with a bunch of people watching, the press and press gallery. Any case I go to argue I'm apprehensive so this was ultra apprehensive.

Oral Arguments: We'll hear arguments first this morning in the number 78432, The United Steelworkers against Brian Weber, and the consolidated cases that Mr. Brian-

Marianne: In the oral arguments you hear that one of the things the case hinges on is whether an affirmative action program like this can be adopted to address societal discrimination, the general fact that Black people have been excluded from workplaces for so long which today we would call systemic racism.

Mike: It was the lack of training which disabled Kaiser from hiring them because they didn't have trained Black craftsmen in the community. That wasn't true if you-

Marianne: Or does the affirmative action program have to be addressing specific discrimination, specific to this aluminum plant in Gramercy, Louisiana?

Kai: Did they have to have shown that Kaiser had discriminated against Black people and then they could have this kind of program or not?

Marianne: Weber's attorney, Michael Fontham argues there was no discrimination at the plant, that is since the Civil Rights Act was passed.

Mike: There was no discrimination against the individuals who are being preferred and in fact, there is no discrimination at the plant at large.

Marianne: Then there are these great exchanges with Justice Thurgood Marshall.

Thurgood: Who put on the evidence on behalf of the negros involved here?

Mike: Your Honour the union attempted to-

Thurgood: There was no evidence. Who represented them?

Marianne: Justice Marshall really takes issue with the idea that there was no discrimination at Kaiser Aluminum.

Thurgood: It wasn't based on testimony.

Mike: Yes, Your Honour it was based on testimony. It was based on an analysis of the-

Marianne: He presses Fontham multiple times with this question, "Who represented the Black people in those cases?"

Kai: Who?

Thurgood: Who represented the negro?

Mike: Your Honour, there were no intervenings if that's the question. I'll say this, Your Honour- [sound cut] He was saying, "Well nobody was a defendant representing the African-Americans who got favored." That's true. [sound cut] -comprised of.

Thurgood: You expect Kaiser to come in and say they openly discriminated against negros?

Mike: No, Your Honour, I don't expect them to say that, but I do know that.

Marianne: The hearing gets pretty lively at times.

Thurgood: Yes, sir. I said, "You resent me. Done." In my book, McDonald's doesn't help you.

Mike: I'm so sorry to hear that Your Honour.

[laughter]

Marianne: So much of the case turns on this question of, "How to read the Civil Rights Act?" Do we follow what the text of the law says? The text is clearly on Brian Weber's side. You can't discriminate on the basis of race but the discussion in the oral arguments quickly turns to, "Okay, that's what the law says in black and white letters on the page but what was the intent of the Civil Rights Act?" It was to remedy past discrimination. They have this whole debate about what was said during the congressional debates over the Civil Rights Act. Weber's side is quoting lawmakers who promised that Title VII of the act would not result in quotas.

Mike: What happened when Title VII was passed was that the opponents-- [sound cut] Hubert [00:38:17] Humphrey was one of the lead proponents of the Civil Rights Act. He made a statement on the Senate floor that he would eat the act page by page if it could ever be interpreted to allow a quota. [sound cut] The claims were this would permit quotas to advance minorities and Senator Humphrey is saying a quota would violate Title VII.

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Marianne: At the end of the arguments, Brian Weber and Mike Fontham go outside and talk to the press and Brian Weber says he remembers a Black woman in the crowd interrupting him. The way he remembers it is she said, "We were held back for years."

Brian: "We were held back for years" or something like that and it wasn't a big attack, but it was just a comment that interrupted the interview and I just turned to her and just said, "I'm sorry lady but I didn't have anything to do with that."

Marianne: The Supreme Court rules on the case and Brian Weber ultimately loses his battle.

Kai: Oh. Even knowing everything I knew going into this Marianne, somehow I was surprised when you said that. The court accepted Thurgood Marshall's reasoning essentially, right?

Marianne: Yes, affirmative action survives and even this program with a new miracle goal/quota, the entire thing is approved and you're not the only one who's surprised when I tell people this.

Kai: Coming up, how proponents of affirmative action won the case but lost the argument. This is the United States of Anxiety, I'm Kai Wright. We'll be back after a break with the conclusion of Marianne's story about the misunderstood legal history of affirmative action. Hey, everybody. I want to ask your help with something. A huge part of what we're doing with this show is building a community, a community of people who want to share the joy and the work of creating and living in a healthy plural society. That's why we've started taking calls on the live show and soliciting your tweets and your voicemails here.

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Kai: It's all part of building a community. You can do two things to help build our community. First off, just invite somebody to join you in it. Maybe even start listening together on Sunday evenings. However you do it, invite other people in. Second, you can leave a review on whatever app you're using to listen right now. You can give us a rating there, that's nice but also leave a comment. Why do you listen? Why should others join you in listening? Again, think of it as making an invitation. It's how community works. Thanks in advance for doing either or both of those things. Even if you can't do either of them, thanks for being part of our community.

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Welcome back. This is the United States of Anxiety, I'm Kai Wright. This week, our reporter Marianne McCune is telling us a story about how the debate over affirmative action in the workplace got so muddled and confused.

We've gone back 50 years to a legal case that challenged one company's effort to prioritize the advancement of Black employees into higher pay jobs, which they had been systematically kept out of forever. This became a pivotal case in the history of affirmative action in the workplace. I thought for sure that Marianne was going to tell me the Supreme Court declared that companies program for Black employees illegal, but that is not what happened, they gave it a green light and it remains perfectly legal today.

Why does it seem like affirmative action has been defeated as an idea, at least in the labor market? Why is it so hard for all these companies that are still overwhelmingly white today, to just acknowledge that fact and take proactive steps to remedy it? Marianne says that is about a more recent history.

Marianne: I want to introduce you to one more person, not someone who was in Louisiana in the '70s, or who argued before the Supreme Court. She teaches law in San Francisco at Golden Gate University.

Hina: My name is Hina Shah. I am the director of the… [barking in background] calm down.

Marianne: Of course, she's working at home and she has a dog.

[dog barking]

Hina: Yoda! Okay, I'll do it again. My name is Tina Shah. I'm a-

Marianne: Hina. started researching affirmative action because she runs a law clinic. A lot of their clients are low paid domestic workers and she was thinking about why the American workforce is still so segregated with so many Black and Brown workers in low wage jobs. She was thinking about how to fix it.

Hina: I along with a lot of Americans felt like affirmative action was something that was not even viable.

Marianne: When she dug into Brian Weber's Supreme Court case and the piles of legal and economic studies of affirmative action since, she thought, "Wait a minute, Kaiser Aluminum and the United Steelworkers were onto something. They won in the Supreme Court, it was legal."

Hina: There's quite a bit of leeway for private employers.

Marianne: Then, as we move forward in history, it doesn't seem like they won. Why is that?

Hina: Well, because Reagan happened.

Reagan: How do you do? I have a brief opening statement here-

Marianne: As early as his very first White House press conference in January of 1981, then-President Ronald Reagan directs his amiable squint beyond the first few rows of reporters with their hands up.

Reagan: I've got to prove I can look at the back rows there.

Marianne: He calls on a Black correspondent, maybe three-quarters of the way back.

Correspondent 1: Mr. President, some administrative officials have promised adherence to the civil rights laws, but there has been considerable discussion about dismantling the affirmative action aspect that give those laws to some people greater meaning. I'm wondering, Mr. President, if there will be a retreat in the federal government on-

Hina: What happens is that Reagan comes and immediately starts an assault on affirmative action.

Reagan: I think we've made great progress in the civil rights field. I think there are some things, however, that may not be as useful as they once were, or that may even be destroyed in the practice, such as some affirmative action programs becoming quota systems-

Marianne: Reagan eliminates some affirmative action requirements for federal agencies. Federal contractors still have to have affirmative action plans but Reagan vastly reduces enforcement. It's on the books but no one is crumpling up your plans and throwing them on the floor.

Reagan: In fact, I'm trying to prevent discrimination with this idea, as I say of eliminating quotas.

Marianne: The Reagan administration communicates in writing, in policy, and in appearances before the public that quotas are not okay.

Reagan: As I said before, I think that we must have a colorblind society.

Newsreel: Allan Bakke, a central figure in a major-

Marianne: Some high-profile lawsuits around affirmative action in education also loomed large in the public consciousness. Even before the Weber ruling, the courts started narrowing the options for schools that aim to accept more minorities.

Newsreel: -and as a reflection of an American society which says, "We've given these people enough."

Marianne: Those cases have almost no bearing on what private companies are allowed to do, it's a different body of law, but they helped cast affirmative action as dangerous legal territory.

Hina: You start to see a watering down even among the Democratic Parties embracing affirmative action.

Marianne: Many affirmative action programs are replaced with "diversity initiatives," which help women and some immigrants but-

Hina: -Did very little to increase black representation in the workplace.

Newsreel: On one side, there are people like these college students who oppose Proposition 209, the measure that would end affirmative action in California.

Marianne: In the 1990s, some states including California, start passing their own laws to ban affirmative action. This year, California voted to continue that ban.

Newsreel: It is a war of emotion with both sides saturating the airwaves.

Marianne: There are plenty of people who readily argue that the Supreme Court ruling on Brian Weber's case was just flat out wrong. In his dissent, Justice William Rehnquist compared his colleagues on the bench to escape artists.

Female Lawyer: Good afternoon, everyone, and welcome-

Marianne: Last year at a Federalist Society convention, conservative lawyers described the ruling as legislating from the bench.

Male Lawyer: -to be the opposite of what its plain words meant.

Marianne: This is all part of what Hina Shah calls a narrative shift.

Hina: I think that it's really important to have a more robust understanding of the history of employment in this country. It is a history that is rooted in taking away opportunities from African Americans. The brilliance of Reagan's rebranding was to make it seem that affirmative action was taking away something from whites.

Marianne: For decades that has felt true to people like Brian Weber.

Hina: The data would absolutely counter that.

Marianne: Research points to many benefits of affirmative action and not just for underrepresented workers. One comprehensive data crunch shows that during the years before Reagan, when the federal government mandated results, Black employment grew more than at any other time, but at the same time, the study says more white men ended up in managerial jobs. Brian Weber never did make it into a craft job at his aluminum plant, but he ended up going to college, getting an MBA, and enjoying a long career in labor relations.

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Newsreel: 47-year-old Jim Nailor.

Jim: The younger generation coming up, you have the opportunity now to see that we have someone that's thinking about them in the National Supreme Court. Thank God for these men that ruled in that favor, and that gives them a little more ambition now to press on forward.

Marianne: When Jim Nailor finally became an electrician at Kaiser Aluminum, it was not easy for him. His son Charles says that some of his dad's colleagues would use racist slurs or worse, they'd refuse to work with him, but Jim just powered through and he taught his son to do the same.

Charles: I basically followed my dad footsteps.

Marianne: Charles was still in community college in 1980 when he got an interview for a job as a full-fledged electrician at a local oil company. He says they offered him the job before he even graduated.

Charles: I said, "Can I hold on for a while? I would like to graduate with my class." He said, "That's not a problem. This job is for you," I started there, May the 5th of 1980 at the plant. They held that position for me until I got there.

Marianne: When I talked to the man in charge of HR at the Kaiser Aluminum plant, Dennis English, and asked him to think back on those years when his bosses were so committed to affirmative action, and the government was enforcing it, he said what it did was jumpstart a change.

Dennis English: It forced all of us in the business world to really go out of our way to do more than we had been doing. We could have had all great ideas, and we did a lot of things, but affirmative action made us, forced us because of the government pressures to look harder, look deeper, do things we hadn't done.

Marianne: Over time, he says they learned that those things worked.

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Kai: United States of Anxiety is a production of WNYC Studios. Marianne asked me this week to give a special thanks to a whole bunch of people who helped make this story possible, so thanks to Grace Nailor, Hamilton Sty, Rudolph Mitchell, James Stewart, Ron Udakavich, Bob Shone, Raymond Grow, as well as John H., Jeff Whitney, and all the other staff at Noronda Alumina and New Day Aluminum. Thanks for making sure that Marianne could do her reporting for this great story.

Joe Plourde mixed the podcast version. Kevin Bristow and Julianna Fonda were at the boards for the live show. Additional engineering help this week from Jared Paul. Our team also includes Carolyn Adams, Emily Botein, Jenny Casas, Marianne McCune, Christopher Werth, and Veralyn Williams.

Our theme music was written by Hannis Brown and performed by the Outer Borough Brass Band. Karen Frillmann is our executive producer, and I am Kai Wright. You can keep in touch with me on Twitter @kai_wright, that's K-A-I_Wright like the brothers. Of course, I hope that you will join us for the live version of the show next Sunday, 6:00 P.M. Eastern. You can stream it @wnyc.org or tell your smart speaker to play WNYC. Until then, thanks for listening. Take care of yourselves.

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