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The enduring relevance of affirmative action.

One of the most notable accomplishments of liberalism over the past 20 years is something that didn't happen: the demise of affirmative action. Contrary to all predictions, affirmative action has survived. This is a triumph not only for race relations but also for the liberal vision of an inclusive society with full opportunity for all.

In the early 1990s, the future of policies aimed at assisting racial minorities seemed bleak indeed. In 1989, the Supreme Court invalidated an affirmative-action plan for government contracts in Richmond, Virginia, holding that such programs at the state and local level must be subject to "strict scrutiny"--the same level of skeptical assessment applied to laws or decisions that had historically disadvantaged racial minorities. That same year, the Court issued decisions that neutered the concept of "disparate impact" as a form of racial discrimination under Title VII of the Civil Rights Act of 1964. Disparate impact required employers not only to desist from intentionally excluding racial-minority applicants because of their race but also to avoid race-neutral screening criteria that had the same effect, unless the criteria could be justified by "business necessity" or shown to be related to job performance. In 1990, when Congress repudiated the Court's regressive interpretation of Title VII, President George H.W. Bush vetoed the legislation, calling it a "quota bill."

The Civil Rights Act of 1991 passed eventually, but not before Bush put a new impediment in the way of affirmative action. He nominated Clarence Thomas, a vehement enemy of affirmative action, to replace Thurgood Marshall on the Supreme Court. This was a momentous shift that would be tantamount to Antonin Scalia being replaced by, say, liberal legal scholar Laurence Tribe. Thomas--a black man who famously overcame racism and impoverishment as a youngster--added extra timbre to the Court's anti-affirmative-action chorus, despite the fact that he was himself a beneficiary of the policy, both at Yale Law School and in the Ronald Reagan and George H.W. Bush administrations.

Conservatives charged that affirmative action amounts to "reverse racism"; discriminates against "innocent whites"; stigmatizes its putative beneficiaries; erodes the incentives that prompt individuals to put forth their best efforts; lowers standards; produces inefficiencies; goes to those racial minorities who need it least; and generates racial resentments. This indictment and the backlash it rationalized resonated not only with Republicans but also with Democrats, some of whom shared the conservatives' philosophical objections to the policy, while others worried simply that supporting it meant electoral suicide.

Writing in these pages in 1990, sociologist William Julius Wilson asserted that "the movement for racial equality needs a new political strategy ... that appeals to a broader coalition." Eschewing affirmative action (though he has subsequently changed his mind), Wilson championed redistributive reforms through "race-neutral policies," contending that they could help the Democratic Party regain lost political support while simultaneously benefiting those further down within minority groups. Similarly, in 1992 Prospect founding co-editor Paul Start lamented that affirmative action "has taken a big political toll," alienating working-class whites, increasing political support for the right, and making it harder to enact "the kind of positive legislation that would especially benefit low- to middle-income Americans of all races."


One key Democrat attracted to this critique is Barack Obama. Writing in The Audacity of Hope, he did not expressly condemn affirmative action, but he did consign it to a category of exhausted programs that "dissect[s] Americans into 'us' and 'them" and that "can't serve as the basis for the kinds of sustained, broad-based political coalitions needed to transform America." As president, Obama has repeatedly eschewed race-targeting (with respect most notably to employment policy) in favor of "universal" reforms that allegedly lift all boats.

Over the years, affirmative action has been truncated by judicial rulings and banned by voters in some states. In one guise or another, however, special efforts to assist marginalized racial minorities remain a major force in many schools and firms, foundations, and governments. Affirmative action survived principally because many rightly believe what President Bill Clinton declared on July 19, 1995, in what is (thus far) the only presidential address wholly devoted to the subject: "Affirmative action has been good for America." Clinton argued that ongoing injuries of past racial wrongs require redress; that affirmative action can usefully serve to prevent new invidious discrimination that is difficult, if not impossible, to reach through litigation; that the adverse consequences of affirmative action on whites are often grossly exaggerated and can easily be minimized; and that better learning and decision-making arise in environments that are racially diverse.

The amorphous and malleable idea of "diversity" provided much needed buoyancy to affirmative action, especially in the 2003 University of Michigan affirmative-action cases when 65 major companies, including American Express, Coca Cola, and Microsoft, asserted that maintaining racial diversity in institutions of higher education is vital to their efforts to hire and maintain a diverse workforce. A group of former high-ranking officers and civilian leaders of the military concurred, declaring that "a highly qualified, racially diverse officer corps ... is essential to the military's ability to fulfill its principal mission to provide national security." Even Theodore Olson, the Bush administration's solicitor general, took pains to defer to "diversity" in a brief on the case.

The rise of the diversity rationale for affirmative action has not been costless, but it has ensured that appreciable numbers of racial minorities are in strategic positions, while dampening certain side effects that attend any regime of racial selectivity. Unlike affirmative action based on grounds of compensatory justice, the diversity rationale is non-accusatory. It doesn't depend on an assumption of culpability for some past or present wrong, and it minimizes the anger ignited when whites are accused of being beneficiaries of racial privilege. Everyone can be a part of diversity.

Many are drawn to the diversity rationale because it frames affirmative action not as special aid for designated groups but as a way of producing better services and products. Businesspeople love to say that "diversity is good for the bottom line." Many of them would be ideologically allergic to a business practice based solely on notions of justice or altruism but comfortable supporting a program that can be seen as reinforcing the principal mission of their enterprises.

The diversity rationale also facilitates the evasion of prickly subjects--for instance, the fact that racial minorities selected for valued positions sometimes have records that, according to certain criteria such as standardized tests, are inferior to those of white competitors. The diversity rationale moves the spotlight from the perceived deficiencies of racial minorities to their perceived strengths. Unlike other justifications for affirmative action that seek to make exceptions to meritocracy, the diversity rationale is consistent with meritocratic premises. This is the most striking and historically significant aspect of affirmative action: It enables racial-minority status for the first time in American history to be seen as a valuable credential. Instead of the presence of blacks and other racial minorities constituting an expiation of past sins, the diversity rationale makes their presence a welcome and positive good.

Liberals have been key supporters of the modern struggle for racial equality. Affirmative action is both a major strategy and central accomplishment of that struggle. Its status is paradoxical. The election of the first African American president represents a coming of age of the "affirmative-action babies," but the right has so successfully vilified the policy that Obama is embarrassed by it. He has yet to say forthrightly what Bill Clinton aptly declared: Affirmative action is good for America.

This observation is not necessarily a criticism of Obama. The president should be pragmatic. If quietude about affirmative action serves its purposes or is essential to him retaining office, then by all means he should remain quiet. Fortunately, though, Obama's acts and omissions, justifiable or not, will not prove decisive. The true measure of affirmative action's staying power is that its absence now is virtually inconceivable. Liberalism has made racial homogeneity uncool and unacceptable. Even many conservatives are made uncomfortable by lily-white gatherings--hence the enhanced value to the right of Clarence Thomas, Shelby Steele, Condoleezza Rice, Linda Chavez, and any well-spoken Negro or Latino who consorts with the Tea Party crowd. That conservatives practice affirmative action even as they condemn it is a tribute to liberalism's handiwork.

Randall Kennedy has been a contributing editor of the Prospect since 1995. He is the Michael R. Klein Professor of Law at Harvard University and is completing a book on race relations and the Obama presidency.
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Author:Kennedy, Randall
Publication:The American Prospect
Geographic Code:1USA
Date:Sep 1, 2010
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