“Diversity”
as a compelling government interest may indeed have gotten a
clean (and, perhaps temporary) bill of health from the High
Court. However, affirmative action has been liquidated
as public policy of the United States. At least since the 1978
Bakke decision, which struck down strict “quotas” in
college admissions, friends and foes of Black people have tended
to use the terms “affirmative action” and “diversity” interchangeably.
One of the terms is now deceased. Let’s think of this article
as a wake and, with proper respect for its passing, speak of
affirmative action as it was originally intended and understood.
As
public policy, affirmative action can be dated to President
Lyndon Baines Johnson’s June
4, 1965 address to the graduating class of Howard University.
LBJ intended this speech as his own Civil Rights Proclamation.
He chose his words carefully, with an eye towards posterity:
"You
do not wipe away the scars of centuries by saying: 'now, you
are free to go where you want, do as you desire, and choose
the leaders you please.' You do not take a man who for years
has been hobbled by chains, liberate him, bring him to the starting
line of a race, saying, 'you are free to compete with all the
others,' and still justly believe you have been completely fair….
This is the next and more profound stage of the battle for civil
rights. We seek not just freedom but opportunity - not just
legal equity but human ability - not just equality as a right
and a theory, but equality as a fact and as a result."
Johnson’s
meaning was unmistakable. The power of the government of the
United States would be harnessed to redress the historical grievances
of, and 
harms
done to, a specific people: African Americans. Public policy
would affirmatively address the legacy (“chains”) of slavery,
by instituting programs designed to achieve equality for
Black people “as a result.”
Johnson’s
words were a direct response to the demands of the civil rights
movement. He employed the same metaphor as did Dr. Martin Luther
King, Jr., in his 1964 book, “Why
We Can’t Wait”:
“Whenever
this issue of compensatory or preferential treatment for the
Negro is raised, some of our friends recoil in horror. The Negro
should be granted equality, they agree; but he should ask for
nothing more. On the surface, this appears reasonable, but it
is not realistic. For it is obvious that if a man is entering
the starting line in a race 300 years after another man, the
first would have to perform some impossible feat in order to
catch up with his fellow runner.”
LBJ
and MLK were engaged in an historical dialogue, culminating
in the President’s Howard University address, marking the definitive
beginning of affirmative action as public policy. There can
be no doubt about King’s or LBJ’s understanding of the tools
that would be necessary to affect redress of the harm done by
slavery: “compensatory and preferential treatment,” the only
course that Dr. King considered “realistic.” The Right can buy, rent or steal MLK’s words
for eternity, but they cannot erase the historical record. From
a 1965
interview with Dr. King:
Reporter:
"Do you feel it's fair to request a multi-billion dollar
program of preferential treatment for the Negro, or any other
minority?"
Dr.
King: "I do indeed...Within common law, we have ample precedents
for special compensatory programs….
America adopted a policy of special treatment for her
millions of veterans... They could negotiate loans from banks
to launch businesses. They could receive special points to place
them ahead in competition for civil service jobs... There was
no appreciable resentment of the preferential treatment being
given to the special group."
President
Johnson and Dr. King were on the same page, and everyone in
the national audience knew it. (Remember, this is a wake, and
no place for revisionism. Tell the truth.)
The
necessity of numbers
By
1965, powerful forces seeking to contain and appease the Black
movement – including Lyndon Johnson – had already accepted the
legal/historical premise underpinning Black demands: that all
three branches of the federal government had collaborated in
the institution of slavery, as had the states. Government therefore
bore an affirmative obligation to repair the wrongs it
had committed against a distinct class of people, and the resulting
harm to their descendants. Thus, affirmative action was necessary.
As
called forth by LBJ at Howard University, affirmative action
was a directive to the public sector and recipients of public
dollars that numerical results would be required, as a measure
of effective implementation of this “more profound stage of the battle for civil
rights.” No
longer would white managers and admissions officers be permitted
to get away with the excuse, “We can’t find any qualified Blacks”
to hire or enroll. Of course there would be “preferential”
and “special” treatment. A specific people had suffered undeniable
harms that must be redressed in measurable ways.
The
Voting Rights Act, signed by LBJ in the same year as his Howard
address, was rooted in a similar legal construction, and anticipated
that the state and local governments that had disenfranchised
Blacks were likely to attempt to do so, again. Thus, any changes
in the electoral process that might affect the Black franchise
were subject to federal review. The fact of racist practices
against Black people was foundational. “Diversity” had not entered
the political vocabulary.
How
did the robust concept of affirmative action whither into an
anemic diversity? First, it was smothered by its friends.
Desperate for allies
Half
of Black America could not vote in 1965. The election of Black
mayors in major cities was still years away. Yet the Black movement
had spawned a general convulsion in American society, from which
emerged the anti-war movement, heightened activism among Hispanics
and Native Americans, and the women’s movement. These new formations
were, to one degree or another, allies of African Americans.
When they demanded to be included in the affirmative action
framework, how could Black leadership say, No?
A
number of those active in the Black Power movement of the late
Sixties and early Seventies warned of the inevitable erosion
of Black people’s special claims against American government
and society, that the historical, moral and legal basis of affirmative
action was being shared into meaninglessness. 
However,
Black people needed allies in the political sphere, to promote
and defend the fruits of LBJ’s Great Society. Plus, it was necessary
to defend the achievements of integration. Integration easily
morphed into diversity, at the expense of affirmative action,
which soon meant different things to different people. For the
most part, Black leadership allowed the conversation to become
degraded, less centered on Black realities, so long as those
who interpreted affirmative action were seen as generally friendly
to Black aspirations.
The
average KKK member may be stupid, but lawyers for the corporate
Right are not. They relentlessly attacked the constitutional
basis of the “results” imperative of affirmative action, successfully
demonizing the essential mechanisms of the concept as “quotas.”
In 1978, affirmative action was eviscerated by the Bakke
decision, and twisted slowly in the wind for the next 25 years
– until last week, when old man affirmative action passed away.
No
justice – no problem
Having
long ago given up the high ground of historical Black oppression,
and too often forgetting what they were supposed to be defending,
Black leadership braced for the coup de grace. Had Michigan’s
law school diversity 
program
been struck down along with the university’s pre-graduate point
system, racists everywhere would have gotten the signal that
America is once again a White Man’s Country. We were spared
that catastrophe. But it is historically wrong and politically
foolish to pretend that affirmative action is “alive and well”
in the United States.
What
has definitively replaced affirmative action is a kind of soccer
mom diversity consensus. "Effective participation by members of all racial and ethnic
groups in the civic life of our nation is essential if the dream
of one nation, indivisible, is to be realized," wrote Sandra
Day O’Connor. Nothing in there about justice for the descendants
of the slaves. Instead, government is deemed to have a compelling
interest in running itself and society more effectively. Diversity
is good for the country, just as it’s nice to look out on the
soccer field and see kids from various ethnicities playing together.
Which
means that white folks are free to play at diversity and use
race as a factor, as long as the rules don’t address racial
injustice or demand results.
