We Gon' Be Alright: Notes on Race and Resegregation (4 page)

More Than Freedom

The official use of the word “diversity” reveals a story of compromise and redirection. The word itself was a semi-obscure one, favored by an esoteric group of ecologists and cultural equity activists, until Justice Lewis Powell Jr. plucked it out to use in his opinion in the 1978
Regents of the University of California v. Bakke
case. For better and for worse, Powell profoundly changed how we talk about race in America. Because of that case, “diversity” has been inextricably entwined with another weird phrase: “affirmative action.”

For a long time, the debate over affirmative action was a proxy for discussing race and inequality. It was a way to talk about debt and reparations, guilt and transformation, without ever using those words. With each succeeding Supreme Court case, it seems that philosophy, pragmatism, and policy receive diminishing returns.

As Terry H. Anderson writes in his history
The Pursuit of Fairness
, the word “affirmative” and the word “action” may have first appeared together in the 1935 Wagner Act, also known as the National Labor Relations Act, the law that guaranteed collective bargaining rights for private-sector laborers. The term was associated with a different kind of inequality back then, as a remedy for workers who had been discriminated against—offending employers were required to take “affirmative action” to restore the salary or position the employee would otherwise have had.
¹⁵
The term did not explicitly speak to racial discrimination. It created more broadly the notion of a class in need of protection for whom equity needed to be restored or achieved. Anderson and other historians, notably Ira Katznelson, have argued that government efforts—such as New Deal policies around housing, welfare, Social Security, Medicaid, and labor, or the postwar G.I. Bill—were effectively affirmative action programs for protected classes composed predominantly of whites.
¹⁶

By the 1960s, during a period of an emerging civil rights consensus, African Americans and other underrepresented minorities who had suffered discrimination were finally deemed worthy of consideration as a protected class. Through a series of executive orders issued first by President Kennedy and then by President Johnson, and later in the 1964 Civil Rights Act (which enjoyed the support of 70 percent of the country), the government response to racial justice movements took shape, first through a colorblind principle of nondiscrimination and then in the use of affirmative action as a color-conscious weapon to reverse racial discrimination and segregation.
¹⁷

In a June 4, 1965, commencement speech at Howard University, President Johnson articulated the shift:

But freedom is not enough. You do not wipe away the scars of centuries by saying: “Now you are free to go where you want, and do as you desire, and choose the leaders you please.”

You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “You are free to compete with all the others,” and still justly believe that you have been completely fair.

Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.

This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.

For the task is to give 20 million Negroes the same chance as every other American to learn and grow, to work and share in society, to develop their abilities—physical, mental and spiritual—and to pursue their individual happiness.
¹⁸

Beginning in the early 1960s, elite universities—including Michigan, Harvard, Cornell, and UCLA, all historically white institutions whose student-of-color populations were negligibly small—adopted affirmative action programs.
¹⁹
At many of these campuses, students of color demanded proportional representation, but administrators opted for more gradualist programs, taking on the governmental language of analysis, goals, and timetables.
²⁰

Over the next three decades, educational, governmental, and corporate institutions across the country developed and expanded affirmative action plans to open doors for Blacks and other minorities. The broad-based civil rights movement became a battle waged largely by politicians, lawyers, administrators, and academics focused on claims of rights and opportunity.

In 1978, the
Bakke
decision crystallized debates that had been raging since the outset of affirmative action. And it did so in the context of California, a key demographic forerunner of the rest of the nation.

At the time, California’s population was over 25 percent nonwhite. Plaintiff Allan Bakke wanted to attend the University of California at Davis medical program, which reserved sixteen of its one hundred slots annually for disadvantaged students via a special admissions program. Twice, the med school rejected Bakke. The California Supreme Court ruled six to one that the special admissions program was a quota system and was unconstitutional. It also held that any consideration of race in admissions was unconstitutional.

In a 1977 op-ed titled “Reparation, American Style,” the
New York Times
framed the question before the court like so: “Should we reduce opportunity for whites—somewhat—so as to accelerate opportunity for some blacks and other victims of pervasive discrimination?”
²¹
To supporters of affirmative action, Bakke’s victory denied the history of racial discrimination and segregation, the fact of underrepresentation, and preserved white entitlement. But to opponents, Bakke’s case defined “reverse racism” against whites.

The U.S. Supreme Court split down the middle. Four justices—Chief Justice Burger, along with Justices Stevens, Rehnquist, and Stewart—agreed with the California Supreme Court. Four—Brennan, White, Marshall, and Blackmun—supported the affirmative action program. In order to secure a majority, Justice Lewis Powell Jr. proposed to cut the baby in half, finding the special admissions program unconstitutional but allowing that the university—and, in turn, the government—had a compelling interest in seeking diversity.

Powell first argued that fidelity to colorblindness all but denied any consideration of previous discrimination based on race. “Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination,” he wrote. But race, along with other kinds of factors—such as geography or “cultural disadvantage”—enriched the educational experience for all. Such “plus factors” together constituted “genuine diversity.”

Powell drew extensively—and quite unironically—on Harvard’s admissions plan, writing:

The belief that diversity adds an essential ingredient to the educational process has long been a tenet of Harvard College admissions. Fifteen or twenty years ago, however, diversity meant students from California, New York, and Massachusetts; city dwellers and farm boys; violinists, painters and football players; biologists, historians and classicists; potential stockbrokers, academics and politicians.
The result was that very few ethnic or racial minorities attended Harvard College
. In recent years Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos and other minority students. Contemporary conditions in the United States mean that if Harvard College is to continue to offer a first-rate education to its students, minority representation in the undergraduate body cannot be ignored by the Committee on Admissions.
²²

Powell had disappeared racial exclusion from the history of higher education, and redirected discussion of affirmative action into a decontextualized present. He radically flattened difference.
You’re a farm boy. You’re a violinist. You’re a Louisianan. You’re Black. You’re Chicano.
He had affirmed that diversity really was for white people.

By contrast, Justice Blackmun noted that only 2 percent of doctors in the country were of color, and wondered why, of all admissions preferences, the one remedying racial discrimination should be singled out for condemnation. He added, “I suspect it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible.”

Justice Thurgood Marshall was even more direct. “It is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible.” But with Powell’s decision, diversity displaced equity as the only viable defense of programs meant to address underrepresentation.

In 1979, just after the Bakke case was decided, 67 percent of whites supported affirmative action.
²³
But Powell had opened the door for opponents to attack the program as harmful to whites. To achieve diversity, he seemed to argue, you didn’t need quotas, you just needed optics. Powell’s diversity rationale countenanced a Noah’s Ark approach—add two of each to the Ark to escape the rising floodwaters. The climate-change analogy feels apt: the problem of racial segregation and exclusion had been wholly man-made. Powell’s solution did not address the problem so much as redirect the forces around it. Diversity was the rainbow sign. After the flood, the fire next time.

The Reagan administration, no friends of civil rights, argued that affirmative action unfairly limited opportunities for whites. And in the coming years, opponents of affirmative action, whether conservative or liberal, broadened their attack on all manner of attempts to achieve racial and cultural equity—in jobs, government contracts, fair housing, bank loans, executive leadership, even university canons and desegregated schools—as antiwhite.

Those who study segregation now mark 1989 as the peak year of public school desegregation. That year, in
City of Richmond v. J. A. Croson Company
, Justice Sandra Day O’Connor reiterated that the court was loathe to weigh claims of past discrimination: “The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.”
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In a courageous minority opinion, Marshall raged that the decision was a “cynical … grapeshot attack on race-conscious remedies.”
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But so it would continue in a long series of cases and new laws that limited the scope of equity programs and accelerated the undoing of desegregation.

Resegregation relied on the restoration of racial innocence, which absolved generations of their responsibility while allowing inequality to evolve and intensify. At the heart of the resegregationist turn was the same decoupling of cause and effect Powell had accomplished in the
Bakke
decision.

In 2007, in a case touching on issues of desegregation and diversity,
Parents Involved in Community Schools v. Seattle School District No. 1
, U.S. Supreme Court Chief Justice John Roberts concluded, “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”
²⁶
Here was the natural limit of Powell’s diversity rationale. If diversity is acceptable, not least because it entertains, edifies, and can be exploited, then why continue the charade around equity? Roberts’s circular logic placed itself beyond rebuttal, admitted no light, refused all other ways of seeing and being. It was the sound of one side folding up and walking away from the race conversation.

In their minority opinion to
Bakke
, Justices Brennan, White, Marshall, and Blackmun had warned against the colorblindness that becomes “myopia which masks the reality that many ‘created equal’ have been treated within our lifetimes as inferior both by the law and by their fellow citizens.” Marshall went on to cite the race gaps in life expectancy, and reminded his fellow justices that “the position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment.” He argued, “In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain a divided society.”
²⁷

The distance between Marshall and Roberts is one way to map the
strangeness
—one of the root meanings of the Old French word “
diversité
”—of this current moment of polarization, the one side attaching inequality to history in order to warn of the consequences of reproducing inequity, the other side talking in circles. Diversity allows whites to remove themselves while requiring the Other to continue performing for them.

At the same moment that the courts, white legislators, and white voters were making the resegregationist turn, “diversity” suddenly became a buzzword. By 1996, Gingrich’s Republicans declared that they were “the party of diversity.” Diversity was good business. In 2000, Viacom purchased BET for $3 billion, to add to a portfolio that included Logo TV for the LGBT market, Nickelodeon for kids, and a bunch of channels for white males ages eighteen to thirty-four. Fourteen years later, Apple purchased Beats Electronics, the company founded by Dr. Dre and Jimmy Iovine, for $3 billion. Diversity became synonymous with profit making for all but the small businesses fighting for the right not to serve gay and transgender customers.