“Affirmative action in higher education is alive and well,” wrote a group of esteemed scholars associated with The Civil Rights Project at Harvard University, assessing the impact of the recent Supreme Court decision. The lawyers seemed intent on putting the most positive spin possible on Justice Sandra Day O’Connor’s majority opinion. “In sum,” the scholars concluded, “the University of Michigan cases make clear that promoting diversity in higher education can justify race-conscious admissions policies when they are carefully designed and consider race as part of a flexible and individualized review of all applicants.”

“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.

Click for printer friendly version of High Court Affirmative Action Cartoon

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.

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