As we await a Supreme Court ruling that is likely to restrict, if not prohibit, crediting racial identity as a plus in competitions for selection to institutions of higher education, it is worth recalling a sobering feature of the racial history of the United States: Every major step undertaken to advance African Americans and to redress the consequences of racial subordination have been met with charges of “reverse discrimination” and unfair “preference.”
Allegations of immoral and unlawful discrimination propel the lawsuits pending against Harvard University and the University of North Carolina before the Supreme Court. Opponents of affirmative action assert that in attempting to aid African Americans and Latinos, elite institutions of higher education are mistreating white people and people of Asian ancestry. A baleful echo haunts this ongoing debate.
When abolitionists petitioned Congress to emancipate slaves, Senator John C. Calhoun objected, warning that “the next step would be to raise the negroes to a social and political equality with whites; and that being effected, we would soon find the present condition of the two races reversed.” Black Americans would be masters and white people slaves.
President Andrew Johnson vetoed the nation’s inaugural civil rights legislation because, in his view, it discriminated against white people and privileged Black people. The Civil Rights Act of 1866 (which Congress enacted over the veto) bestowed citizenship upon all persons — except for certain American Indians — born in the United States and endowed all persons with the same rights as white people in terms of issuing contracts, owning property, suing or being sued or serving as witnesses. This law was proposed because the Supreme Court had ruled in Dred Scott v. Sanford that African Americans, free or enslaved, were ineligible as a matter of race for federal citizenship, and because many states had barred African Americans from enjoying even the most rudimentary civil rights.
Johnson vetoed the act in part because the citizenship provision would immediately make citizens of native-born Black people while European-born immigrants had to wait several years to qualify for citizenship via naturalization (which was then open only to white people). According to Johnson, this amounted to “a discrimination against large numbers of intelligent, worthy and patriotic foreigners, and in favor of the Negro, to whom, after long years of bondage, the avenues to freedom and intelligence have just now been suddenly opened.” Johnson similarly opposed the provision in the act affording federal protection to civil rights, charging that it made possible “discriminating protection to colored persons.”
A key defect of the Civil Rights Act, according to Johnson, was that it established “for the security of the colored race safeguards which go infinitely beyond any that the general government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race.” Johnson opposed as well the 14th Amendment, which decreed that states offer to all persons equal protection of the laws, a provision which he also saw as a wrongful venture in racial favoritism aimed at assisting the undeserving Negro.
In 1875, Congress enacted legislation that prohibited racial discrimination in the provision of public accommodations. Eight years later, in a judgment invalidating that provision, the Supreme Court disapprovingly lectured the Black plaintiffs, declaring that “when a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws.”
In 1941, President Franklin D. Roosevelt promulgated Executive Order 8802, which prohibited racial discrimination in the employment of workers in defense industries and established the Fair Employment Practices Commission to implement the order. Assailing the order, Representative Jamie Whitten, a Mississippi segregationist, complained that it would not so much prevent unfairness as “discriminate in favor of the negro” — this at a time when anti-Black discrimination across the social landscape was blatant, rife and, to a large extent, fully lawful.
Segregationist Southerners were not the only ones who railed against anti-discrimination laws on the grounds that they constituted illegitimate preferences for African Americans. In 1945, the New York City administrator Robert Moses inveighed against pioneering municipal anti-discrimination legislation in employment and college admissions. Displaying more anger at the distant prospect of racial quotas than the immediate reality of racial exclusions, Moses maintained that anti-discrimination measures would “mean the end of honest competition, and the death knell of selection and advancement on the basis of talent.”
Liberals, too, have attacked measures they deemed to constitute illicit racial preferencing on behalf of Black people. When the Congress of Racial Equality, or CORE, proposed “compensatory” hiring in the early 1960s — selection schemes that would give an edge to Black people on account of past victimization and the lingering disabilities caused by historical mistreatment — many liberals resisted. Asked about CORE’s demands, President John F. Kennedy remarked that he did not think that society “can undo the past” and that it was a mistake “to begin to assign quotas on the basis of religion, or race, or color, or nationality.”
Kennedy’s comment that it would be a mistake “to begin” to assign quotas reflects a recurring misimpression that racial politics “begins” when those who have been marginalized make demands for equitable treatment. When Kennedy spoke, unwritten but effective quotas had long existed that enabled white men to monopolize huge swaths of the most influential and coveted positions in society. Yet it was only when facing protests against monopolization that he was moved to deplore status-based quotas.
This same dynamic has been recurrent in subsequent decades: Every major policy seeking to advance the position of Black people has been opposed on the grounds that it was race conscious, racially discriminatory, racially preferential and thus socially toxic. That racial affirmative action in university admissions and elsewhere has survived for so long is remarkable given the powerful forces arrayed against it.
Some will say that their abhorrence of racial discrimination impels them to oppose any race-based policy, including that which purportedly helps African Americans. That response would deserve more deference if those who typically voiced it had a more impressive record with respect to fighting old-style anti-Black racism. Historically, though, those who have been at the forefront of attacking affirmative action have hardly been militants in challenging white supremacist policies, habits and customs. Often, the only discrimination that snags their empathy is that which they see as adversely affecting white people.
Some will say that I am exaggerating because opposition is focused only upon policies that explicitly mention race in competitions for scarce opportunities. They declare confidently that race-neutral strategies for facilitating racial diversity will be in the clear. They insist that wealth-based, or income-based, or ZIP-code-based affirmative action will be immune to judicial attack because such markers are not expressly racial, though if tweaked carefully they can dependably yield substantial numbers of Black beneficiaries. That view is naïve.
Zealous opponents of affirmative action have extended their attacks not only to programs that explicitly list racial criteria in efforts to admit greater numbers of Black and brown students; they are also challenging so-called race-neutral programs because of their race-conscious aims. Our future may disclose a horrifying prescience on the part of President Andrew Johnson. It may reveal a serious effort to delegitimize all efforts toward racial integration, diversity, reparations and anti-discrimination because any such effort is inescapably race conscious.
Not every opponent of affirmative action is racist or indifferent to racism. Nor does this history offer a rebuttal to critiques of affirmative action that are weighty and ought to prompt a desire to reform existing programs. The alacrity, consistency and intensity with which programs aimed at helping Black people have been assailed, however, should give pause to all participants in the debate, including the justices of the Supreme Court.
Why is it that people who typically defend localism, habitually champion institutional experimentation, usually defend the prerogatives of private entities, routinely insist upon judicial restraint and generally resist the exercise of centralizing federal power insist upon a single, absolutist, judicially imposed command when it comes to affirmative action? There are undoubtedly several reasons. But one that has long been on conspicuous display is malign resentment at the sight of Black people getting ahead.
Randall Kennedy teaches at Harvard Law School and is the author of “For Discrimination: Race, Affirmative Action and the Law.”
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