The Slow and Tortured Death of Affirmative Action

“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.

“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 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”:

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:

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.”

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.

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.