Let us no longer speak of affirmative action as an operative legal doctrine in the United States.
This week’s U.S. Supreme Court ruling was about "diversity" in education, not affirmative action, which was politically vitiated by its own proponents in the early Seventies and dealt a deathblow by the Bakke decision of 1978, when the High Court outlawed "quotas" for racial minorities.
From that point on, public institutions were effectively forbidden from pursuing measurable "results" through programs of inclusion of previously excluded classes of persons Â the last gasp of affirmative action as articulated by both Dr. Martin Luther King, Jr. and President Lyndon Johnson.
The current court, in mean-spirited tones, reluctantly affirmed the barebones principle of the 2003 University of Michigan Law School decision (Grutter vs. Bollinger), that public educational institutions can claim a "compelling interest" in fostering "diversity" on campus. However, the Court clearly views the whole enterprise as sordid and suspect, putting the onus on colleges to prove that there exist no "workable race neutral" alternatives available to them.
Thus, for the time being and under the strictest "scrutiny" of openly hostile arbiters, the vague concept of "diversity" as a good thing for public institutions to cultivate, has been given a backhanded "reprieve," as New York Times editorialists put it.
It is noteworthy that the Times editorial employs the term "affirmative action" in its headline, while an analysis of the decision by Sherrilyn Ifill, President of the NAACP Legal Defense Fund, does not use the term, an implicit recognition that affirmative action is no longer a live issue. Indeed, "diversity" is not even a ghost of what Dr. King defined, in his 1964 book Why We Can’t Wait, as "compensatory or preferential treatment for the Negro" Â an idea that he heartily endorsed. "For it is obvious," Dr. King wrote, "that if a man is entering the starting line in a race 300 years after another man, he first would have to perform some impossible feat in order to catch up with his fellow runner."
Even in these "civil rights" years, Dr. King pushed for a Bill of Rights for the Disadvantaged that would convey similar preferences for Negroes as enjoyed by veterans. Anti-affirmative action zealots that cite MLK as the source of their "race neutral" rants are, in a word, lying.
President Lyndon Johnson’s historic speech to the 1965 graduating class of Howard University marked the definitive beginning of affirmative action as public policy. Johnson riffed on King’s metaphor:
"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 Â not just legal equity but human ability Â not just equality as a right and a theory, but equality as a fact and as a result."
Equality "as a result" died with Bakke. But the essence of affirmative action as "compensatory or preferential treatment for the Negro" (emphasis mine) was abandoned not long after King’s death and Johnson’s exit from politics, as bourgeois post-mass movement Black leadership sought allies among other ethnic groups (and white women).
The legal, as well as moral, basis for affirmative action lay in the culpability of the United States and all of its layers of government in the enslavement and Jim Crow "hobbling" of African Americans Â a unique history of oppression of a specific people that requires institutional redress. Otherwise, the legacies of these crimes will reproduce themselves, in mutating forms, into infinity.
Once the specificity of the Black American grievance was abandoned, affirmative action became a general catch-all of various historical wrongs. Stripped of its core, affirmative action morphed into "diversity," a vessel for various aggrieved groups that was politically versatile (and especially useful to the emerging Black deal makers of electoral and corporate politics), but no longer rooted in Black realities.
The affirmative action of Dr. King and President Johnson was a species of reparations, of form of redress for specific and eminently documentable harms done to African Americans, as a people. It was understood as a social debt owed to a defined class.
"Diversity" recognizes no such debt to a particular people, or to any people at all. Rather, its legal basis is the "compelling interest" of public institutions in a diversified student body (or faculty).
As I wrote in July, 2003, the Grutter decision meant 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." (See "The Slow and Tortured Death of Affirmative Action," Black Commentator). The latest ruling narrows the administrative white folks’ playground, and makes race even more suspect as a factor.
The journey from affirmative action to "diversity" has largely negated African American history as a legal basis for redress. What’s left is the notion that it would really be nice if schools and workplaces looked like the country as a whole. The Universities of Michigan and Texas have "compelling interests" that the court will address, but the interests of the descendants of U.S. slaves are immaterial to the argument; they are owed nothing.
Such a result was predictable in the early Seventies Â and many of us did predict it Â when the upwardly mobile Black classes shut down the mass movement in favor of electoral politics and individual corporate striving. Dr. King’s version of affirmative action was meant for mass Black uplift.
President Johnson’s response was mandated by the strength of the Black mass movement. Once that movement was gone, affirmative action was left to twist slowly in the wind, and to meet its final demise in 1978.
Let us say its name no more, except in respectful memory Â or, until a new movement arises that will demand what is historically owed.
June 26, 2013