How We Lost Affirmative Action

Affirmative action is dead. It died a long time ago, but no one seemed to notice. In truth, its death was predictable in the late 1960s when President Richard Nixon, faced with a radicalized Black Power movement that demanded reparations for slavery, used the federal non-discrimination statute (also known as Executive Order 11246) to appease Black folk. But its protections for race, color, religion, sex, and national origin made it possible for educational institutions and employers to say they supported affirmative action while hiring loads of white people.

President Bill Clinton’s “Mend It, Don’t End It” approach in the 1990s similarly gave employers the opportunity to say they supported affirmative action while also hiring mostly white men.

Now we are faced with the irony of Asian Americans accusing Harvard University of discrimination based on race in their “diversity” plan – a system of supposed inclusion that aims to assuage white guilt more than it enables Black success. Legal remedies for race discrimination based on attempts to reverse Black enslavement’s legacy are disappearing faster than Confederate monuments.

African Americans, descendants of enslaved people, were supposed to be the beneficiaries of affirmative action. Today, they are few such beneficiaries at elite schools and in good jobs, with Black students accounting for 6 percent of college freshmen but representing 15 percent of college-age Americans. Sociologists at the University of Pennsylvania went a step further, interviewing admission officers to show an alarming trend: administrators act on the false premise that new immigrants and interracial students are better prospects than Black descendants of enslaved people even though the data on admitted students belies this view.

It seems that the best jobs held by African Americans are managing programs of diversity and inclusion, which often pay good salaries and come with high-powered titles such as executive vice president for inclusion. The truth, however, is that these titles are masks for the perpetuation of white supremacy and continue the overall lack of racial integration.

To Martin Luther King Jr. and other activists during the Civil Rights-Black Power era, affirmative action could act as reparations for slavery and Jim Crow. But in Regents of the University of California vs. Bakke (1978), in which a white man sued the University of California over his non-admission to medical school, the majority opinion dismissed this history of institutionalized inhumanity. In a little noted portion of his opinion, Justice Lewis Powell initiated the diversity fad and gave the legal death blow to affirmative action. Powell saw Bakke as the victim, cautioning that “there is a measure of inequity in forcing innocent persons in respondent's position to bear the burdens of redressing grievances not of their making.”

Powell believed that time had marched on, and the court was no longer interested in acknowledging Blacks as the beneficiaries of the 14th Amendment or requiring some remedy for enslavement and persistent inequality. By the time the Civil Rights Act of 1964 prohibited grants of federal funds to institutions that discriminated based on race, Powell observed,

“It was no longer possible to peg the guarantees of the 14th Amendment to the struggle for equality of one racial minority.”

Instead, he opined, the US had become a “nation of minorities” under the Equal Protection Clause with each minority group struggling to overcome the prejudices of a “majority” composed of various other minorities. Powell also contended that the 14th Amendment, unlike the 13th Amendment which abolished slavery, “was framed in universal terms” and did not contain the words “prior servitude.” This attitude furthered opinions that Black Americans should not look to the Constitution for legal protection or recompense for the horrors of long-institutionalized racism.

Powell’s disrespect for history was not without precedent, and the Constitutional freedoms for Blacks have long been under discussion. In the 1873 Slaughterhouse cases (the first Supreme Court decision to analyze the 13th, 14th, and 15th amendments), Justice Samuel Miller’s majority opinion concluded that “one pervading purpose” throughout the amendments was “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” While Miller’s view remained good law, it was ignored as corporations, instead of Blacks, became “citizens” protected by the 14th Amendment.

Just ten years after Slaughterhouse in 1883, Justice Joseph Bradley said in the Civil Rights Cases that freed Blacks no longer should expect “to be the special favorite of the laws,” and that discrimination based on race or color shouldn’t be outlawed as a “badge or incident of slavery.” This decision has never been overruled. Justice Powell in Bakke sounded a similar note: most of the minority groups counted as the “white majority” “can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all these groups can receive preferential treatment and corresponding judicial tolerance.” Added to his insult and obliviousness, Powell adopted the brief submitted by Harvard and other elite institutions, which offered a diversity plan as a hollow substitute for affirmative action. He announced that “the attainment of a diverse student body… clearly is a constitutionally permissible goal for an institution of higher education.”

A long line of cases and state constitutional amendments, coupled with media and public discourse, have since reinforced this diversity approach as well as judicial intolerance for remainders of slavery and the long history of racial segregation. This attitude was first set in law by Justice Roger Taney in the Dred Scott vs. Sandford (1857) decision, which concluded that Blacks were “so far inferior that they had no rights which the white man was bound to respect” – an opinion that continues to have relevance.

Taney carefully specified that his opinion of inferiority only pertained to “the descendants of Africans who were imported into this country and sold as slaves,” while those who didn’t fit either category were entitled to rights whites should respect. By this logic, President Barack Obama, the biracial descendant of an African immigrant would have rights that Michelle Obama, a descendant of enslaved people, would not. This principle gives a privileged position to anyone Black whose ancestors came not as enslaved people but as new immigrants. Its direct corollary can be seen in admissions biases that favor immigrants and others who aren’t descendants of enslaved men and women.

Disfavored Blacks are still in an inferior position and forbidden from claiming recompense for their ancestor’s slavery or for the ravages of Jim Crow. While other groups suffer discrimination, they have not been enslaved in the United States without recourse to law. The racial inferiority laid out in Dred Scott remains a premise for anointing white spaces and inhibiting remedies for race discrimination today. For example, when Chief Justice John Roberts ruled against a voluntary school integration plan in 2007 claiming, “the way to stop discrimination based on race is to stop discriminating based on race,” he was simply following the precedent set by a racist past that began with Dred Scott.

Justice Roberts was consistently hostile to integration as a remedy for discrimination while working in the Reagan White House and expressed disbelief in African American competence. Joining Roberts in the same case, Justice Clarence Thomas cites Dred Scott as his reason for opposing race-based remedies, but he seemed unaware that his opposition to school integration is racist. The spirit of Taney’s opinion in Dred Scott is alive and well in the Supreme Court in the opinions of Thomas and his colleagues who show no interest in supporting the rights of African Americans to reparative justice.

We cannot assume that, someday, whites will reject diversity and implement effective affirmative action targeted toward Black Americans. Instead, we should pass along as much wealth as possible to our children and grandchildren to empower them in a capitalist economy. We should demand justice. And no matter how long it takes, we must make a forceful demand for reparations for slavery, echoing the demands of the thousands of ex-slaves in the nineteenth century and the many activists who supported the reparations cause ever since. The odds against success are great but given the meager gains to date, it is just as fruitful to argue for reparations as anything else. Whatever we do, we must remember the words of Frederick Douglass: “power concedes nothing without a demand. It never did and it never will.”

About the Author

Mary Frances Berry is the Geraldine R. Segal Professor of American Social Thought and Professor of History at the University of Pennsylvania. She is the author of more than twelve books, including History Teaches Us to Resist: How Progressive Movements Have Succeeded in Challenging Times; Five Dollars and a Pork Chop Sandwich: Vote Buying and the Corruption of Democracy; and We Are Who We Say We Are: A Black Family's Search for Home Across the Atlantic World.