Editor’s note: This essay was also published in the book, "At Issue: Affirmative Action," (Cengage, 2009).
In America’s long struggle for racial equality, 2007 was a paradoxical year. Just as our political system seriously contemplated a black President for the very first time, the Supreme Court declared the end of racial integration policy, halting voluntary local remedies to desegregate public schools under Brown vs. Board of Education. Presented with the rise of Barack Obama and the fall of Brown, most people have focused on the good news.
Many Americans were captivated by the self-proclaimed "audacity" of Obama’s January announcement that he was running for President. Obama made it clear he was not running to send a message or to register voters but literally to get elected. His campaign initially worked because the political elites accepted this unprecedented proposition. Reporters took Obama’s candidacy seriously from its inception, and the donors did, too. Obama has already secured more than a footnote in history, shattering records for individual contributors to his campaign. Win or lose, he is arguably the first black American to be treated by the political and media establishment as a fully viable presidential contender. It is an achievement that cannot be claimed by any other racial minorities. (Jesse Jackson’s campaigns did not attain such standing with the political establishment, despite their significance for many voters.) We should not gloss over this development. It is a meaningful step towards addressing a resilient, uncomfortable American fact: our national power structure has always been, and stubbornly remains, overwhelmingly white, from all forty-three Presidents across history to ninety-five of the one hundred senators serving today.
That segregated power structure was reinforced by the Supreme Court’s sharply divided June decision to ban integration programs in public schools. Most educational policies that consider a student’s race for the purposes of integration are now illegal. Like the original Brown opinion, this year’s decision is not neatly confined to K-12 schools, either. Brown consecrated a new national ambition for racial equality in the public sphere, delegitimizing both explicit and implicit racism in government, and laying a foundation for remedial measures to equalize many other facets of our society. Many critics contend that this case, Parents Involved In Community Schools v. Seattle School District No. 1, augurs a disturbing slide backwards. It bans integration programs, sharply restricts race-based government remedies and sets the stage for future bans on other remedial programs, such as affirmative action, as Justice Stephen Breyer warned.
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But will the public really stand for this sweeping attack on Brown‘s legacy?
Yes. In most of the country, public opposition towards measures to remedy America’s history of racial discrimination, from academic recruitment to professional affirmative action, has actually outpaced the conservative court. Even putting aside the South, generally liberal electorates–including California, Washington and Michigan–have passed state referenda completely banning affirmative action. Hostility towards affirmative action runs so deep, in fact, it is a staple of attacks against black political candidates. Senator Jesse Helms perfected coded campaign racism in 1990, with an infamous attack ad darkly juxtaposing his black opponent’s face with the text "For RACIAL QUOTAS." Which brings us back to Barack Obama.
Some commentators have latched onto Obama’s success as proof for the flawed claim that the United States has completely achieved equal opportunity for all, obviating remedial programs like affirmative action. "Obama embodies and preaches the true and vital message that in today’s America, the opportunities available to black people are unlimited if they work hard, play by the rules, and get a good education," writes Stuart Taylor Jr., a columnist for The National Journal (emphasis added). Taylor presents one man’s unusual political arc as a universal lesson for all "black children": "Obama’s soaring success should tell black children everywhere that they, too, can succeed, and they do not need handouts or reparations." Obama’s success is definitely inspirational, but is that because it is an average example or a remarkable exception?
As a politician, Obama is an accomplished black man who knows that some voters still see him, before all else, as "the black candidate." It seems as if commentators either fixate on how his blackness makes his candidacy historic–as I just did–or debate whether he is "black enough." Obama dutifully protests these lines of inquiry, assuring audiences that his qualifications, vision and personal experiences transcend race. This is not only true, it is a political necessity. Obama knows that he is unlikely to win as the "black candidate," let alone the "affirmative-action candidate."
Few other campaigns in recent memory have pressed meritocratic credentials as forcefully as Obama’s aides. Today’s candidates tend to downplay their Ivy League educations in favor of more humble qualifications. Yet it is rare to hear Obama’s history discussed without a reference to Harvard, or his prestigious stint as editor-in-chief of its Law Review. Even when his campaign is not emphasizing it, reporters highlight Obama’s education far more than any other candidate’s. Take, for example, articles from the major newspapers about the leading Democratic candidates in the first ten months of this year’s campaign. Obama’s Harvard Law credentials turn up a whopping 178 times–six times the thirty Yale references for Hillary Clinton. John Edwards’s law school was only mentioned once, in an article about how he met his wife.
This emphasis is vital to Obama’s candidacy. He earned his past success and current prominence, in this narrative, as evidenced by his academic achievement and intelligence. The story line aims to banish the racist thought, lurking beneath our public discourse, that perhaps this candidate succeeded only because of his race. Sometimes it seeps out anyway. During a January appearance on Fox News, columnist John McWhorter offered the baseless claim that "the reason that [Obama is] considered such a big deal is simply because he’s black." McWhorter implausibly continued, "If you took away the color of his skin, nobody right now would be paying him any attention."
Such baseless attacks obviously predate Barack Obama. Even the most extraordinarily successful minorities are either attacked for their achievements, or the meaning of their educational and professional advancement is contested. Like other talented, smart and successful black Americans who have broken barriers (including Colin Powell and Condoleezza Rice), Obama excelled in an institution that used affirmative action to propel qualified minority applicants. Having proven their mettle as leaders, it is clear each of these figures would excel without affirmative action. And no one knows how their careers would have developed in a society without remedial measures for discrimination. Yet their paths show how the United States has benefited from applying affirmative action in public institutions.
Rice has emphasized how affirmative action gave her an opportunity to prove herself in academia. "I myself am the beneficiary of a Stanford strategy that took affirmative action seriously," she told a Stanford faculty meeting in 1997, and her rise through academia and government embodies the policy’s four original rationales: minority students can overcome adversity, excel academically, share their perspectives to enrich a diverse student body and benefit from the requisite training for leadership positions in society, eventually helping to redress the effects of hundreds of years of discrimination. In other words, by pursuing the values of adversity, diversity and redress on campus, universities can both improve their educational offering and advance equality across American society. Americans are decidedly mixed on "affirmative action"–both as a literal program and as a vessel for complex emotions about race–but few would openly challenge those values. Yet those values have not driven the debate for a long time.
In 1978, the Supreme Court struck down a University of California affirmative action program and rejected most of the program’s traditional rationales. Adversity and redress were out. Instead, Justice Lewis Powell carved out narrow legal authority for programs advancing "diversity," based on the university’s special First Amendment right to foster diverse and open educational environments. "The atmosphere of speculation, experiment and creation–so essential to the quality of higher education–is widely believed to be promoted by a diverse student body," he declared.
The opinion would have profound "discourse shaping effects," as Yale Law School Professor Jack Balkin has written, because advocates of affirmative action could no longer defend the program’s legality by citing illegal rationales. So an administrator might support affirmative action because people who overcome adversity have qualities that tests do not reflect, or because redressing a history of racist exclusion enhances the institution’s legitimacy, but those arguments were suddenly out of bounds. The courts specifically required "diversity" to justify affirmative action.
Depicting affirmative action solely as a diversity measure not only departs from the program’s original purposes. It is also a tough sell. For example, when a 2003 Gallup poll simply asked white Americans whether they "favor" affirmative action, 44 percent said yes and 49 percent said no. When the same poll offered a more detailed choice between college affirmative action "to help promote diversity" or admissions operating "solely on the basis of merit," however, white support for affirmative action plummeted 20 points. Blacks and Hispanics, who favored affirmative action by higher margins, also backed off in this question, with support dropping 21 and 27 points, respectively. Severed from other rationales and pitted against merit, it turns out that even for sympathetic Americans, "diversity" is a drag on affirmative action’s validity. Apparently the public imagination prefers bootstrap narratives to the gauzy diversity of Benetton ads.
It took another twenty-five years for the Supreme Court to move beyond its cramped conception of diversity as the only acceptable rationale for affirmative action. In 2003, the Court broadened the legal foundation for the policy. In a five-to-four decision, the Court cited an influential amicus brief from one of the most aggressive proponents of affirmative action, the US military. A group of former Defense Secretaries and Chairmen of the Joint Chiefs explained that beyond the largely intrinsic benefit of diversity, the very legitimacy and efficacy of the military was advanced when its leadership looked like the rest of the enlisted soldiers. The brief declared that a "highly qualified, racially diverse officer corps educated and trained to command our nation’s racially diverse enlisted ranks is essential." The Supreme Court largely adopted that view, through Justice O’Connor’s majority opinion, touting the importance of diverse national leadership for the entire country:
[U]niversities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders. Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges. In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.
Thus the Court finally conceded that programs ensuring minorities have access to education and power are important for public legitimacy and redressing past discrimination. After all, the lack of "diversity" among today’s leaders is a product of historical discrimination. (The discrimination ranges from the obvious, like voter suppression, to the obscure, like college legacy preferences that function as grandfather clauses for mostly white alumni.) The Court still talked about diversity, since it was the only accepted rationale within the relevant precedent, but it became a vessel for other, underlying grounds that had been pushed off the stage.
This "diversity in national leadership" approach also received an important boost from an unlikely benefactor: George W. Bush.
Liberals and conservatives rarely discuss it, but Bush applied affirmative action to select his cabinet, elevating more racial minorities to senior positions than any administration in American history. That includes, of course, two secretaries of state, (officially the highest-ranking cabinet post), a national security adviser, an attorney general and the secretaries of commerce, labor, transportation and housing and urban development. Contrarians might claim that all those barriers were broken by accident, in a colorblind process that just happened to make history.
Yet the record reveals Bush’s deliberate use of affirmative action. Bush went out of his way to find black candidates in a Republican Party that grooms virtually no black politicians for the national stage. (There are no black Republican members of Congress, and only seven percent of black Americans self-identify as Republicans, according to a 2004 study by the Pew Research Center.) Finding qualified black leaders required a rare detour from the GOP’s overwhelmingly white, partisan networks. It is no surprise that the President tapped the two American institutions at the forefront of affirmative action, the military and the academy, to select former general Powell and former provost Rice.
Why doesn’t Bush get more credit for using affirmative action to build the most diverse cabinet in American history?
He refused to preach what he practiced.
In a conservative twist on "politically correct" culture, Republicans often banish the language of affirmative action even when they practice it. While Bush consciously recruited minorities into some of the most important positions in the United States, he would not admit it. Instead, he spoke out against affirmative action, claiming to advocate only "race-neutral" programs, and thrust his Solicitor General into the odd position of arguing against the President’s own policies in the 2003 affirmative action case before the Supreme Court.
The Administration lost, of course, in the decision written by Justice O’Connor. Now she has been replaced by Samuel Alito, who is widely expected to be the fifth vote for banning all affirmative action at the next opportunity. After all, the Roberts Court was not shy about taking the earliest chance to undermine Brown, a unanimous opinion celebrated as a zenith for the Court’s civil rights accomplishments. The legal precedents for affirmative action are weaker, stretched between Justice Powell’s plurality and Justice O’Connor’s retired swing vote. Meanwhile, the political branches offer little solace, since even politicians who use affirmative action often dare not speak its name, and many now stress their support for preferences based on class, instead of race. Of course, class-based affirmative action, like financial-need scholarships, is a vital part of public policy advancing equal opportunity. But it cannot replace measures that directly address our history of legal, political and educational discrimination.
Ultimately, one part of the high public regard for bright, talented successful black leaders like Obama, Rice or Powell stems from public awareness that our country is still struggling to overcome racial barriers. Powell earned his success within a military and a Cabinet that proudly used affirmative action not simply as a benefit for individual "applicants" like him, not only as a "diversity" boost for his peers in military and government circles, but as an extrinsic value for the progress of our nation and the legitimacy of its leadership. As the first top-tier black presidential candidate, Obama has already advanced that progress another step. Yet win or lose, such examples remain too rare, as the first post-civil rights era cohort comes of age. Even Obama’s potential election reveals this trend, for his elevation to the White House would leave the Senate without a single black member. We still need affirmative action in college, government and business–animated by race, class and equal opportunity–if we are ever going to reform America’s resiliently segregated power structure.
