The upward mobility of such views was strikingly reflected by their arrival in the speeches and writings of Whitney M. Young, Jr., head of the moderate, buttoned-down, business-oriented National Urban League. Young began calling for “a decade of discrimination in favor of Negro youth.” Racial impartiality, he insisted, was “unrealistic at this moment in history.” Instead, this moment required placing a “higher value” on “human potential when it comes encased in a black skin.” Employers who had “never considered a Negro for top jobs in their institutions must now recruit qualified Negro employees and give preference to their employment.”27 Elaborating, Young remarked,
For more than 300 years the white American has received special consideration, or “preferential treatment,” if you will, over the Negro. What we now ask is that for a brief period there be a deliberate and massive effort to include the Negro citizen in the mainstream of American life.f 28
Martin Luther King, Jr., also propounded ideas we associate with affirmative action. “Our society has been doing something special against the Negro for hundreds of years,” King observed in 1963. “How then can he be absorbed into the mainstream of American life if we do not do something special for him now, in order to balance the equation and equip him to compete on a just and equal basis?”g 29 King went on to declare,
Few people consider the fact that, in addition to being enslaved for two centuries, the Negro was, during all those years, robbed of the wages of his toil. No amount of gold could provide an adequate compensation for the exploitation and humiliation of the Negro in America down through the centuries. Not all the wealth of this affluent society could meet the bill. Yet a price can be placed on unpaid wages. The ancient common law has always provided a remedy for the appropriation of the labor of one human being by another. This law should be in the form of a massive program by the government in special, compensatory measures which could be regarded as a settlement in accordance with the accepted practice of common law.h 30
The idea that merely ending invidious discrimination would be inadequate for the purpose of attaining a satisfactory sort of racial equality was held not only by dissident outsiders; it was voiced as well by the ultimate American insider. In June 1964, at a commencement address at Howard University, President Lyndon B. Johnson declared:
Freedom is not enough.…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.31
Talk of special benefits for blacks, however, provoked strong negative reactions across much of the political spectrum. Reactionary defenders of segregation abhorred the notion of positive discrimination benefiting blacks. Opposed to granting Negroes even mere formal equality, they bitterly objected to preferring blacks in any fashion. Important, too, was opposition from non-Southern working-class whites and their representatives. These people did not embrace de jure segregation. But they did insist upon excluding blacks from “their” neighborhoods, schools, social networks, and work sites. Drawn to the economic liberalism, especially the pro-unionism, of the New Deal, they fiercely resisted efforts to reform the racist hierarchies outside the South that governed urban and suburban communities. When civil rights activists confronted these working-class whites in Philadelphia, Chicago, Detroit, Newark, and other locales, seeking to open opportunities long closed to racial minorities, they encountered sentiments, rhetoric, and strategies that surface repeatedly today in the ranks of affirmative action’s enemies. Among these familiar refrains are assertions of white racial innocence, objections to “reverse discrimination,” and protests against the supposed intrusiveness of “big government.”32
Some on the anti-racist Left also objected to especially favoring blacks. Bayard Rustin,i for example, saw that strategy as arising from a misdiagnosis that wrongly elevated racial conflict over the centrality of class conflict and a misprescription that would further weaken the prospects for progressive working-class unity by exacerbating racial resentments.j
Perhaps the most politically potent opposition in the 1960s to what we now refer to as affirmative action arose from highly placed liberals who saw calls for discrimination in favor of racial minorities as inconsistent with the individualistic, meritocratic, race-blind sentiments they championed against white supremacists. Asked his impression of demands of the sort voiced by the CORE official cited above, President John F. Kennedy remarked:
I don’t think we can undo the past.…We have to do the best we can do now.…I don’t think quotas are a good idea. I think it is a mistake to begin to assign quotas on the basis of religion, or race, or color, or nationality. I think we’d get into a good deal of trouble.k 33
Many white liberals in the early 1960s agreed. Answering the question “Should there be ‘compensation’ for Negroes?” a writer in the New York Times Magazine responded in the negative, stating that doing so would “penalize the living in a futile attempt to collect a debt owed by the dead.” He also feared that attempting to compensate blacks would deepen racial division, redound unfairly to the detriment of other mistreated racial minorities, and work a new injustice on innocent whites.34 “Demand for a discrimination in reverse … to the advantage of the Negroes, is misdirected,” asserted the liberal icon Gunnar Myrdal. It would, he warned, “create hatred for Negroes.”35 Reviewing the debate as it existed in the early to mid-1960s, Professor Hugh Davis Graham notes that proposals for compensatory discrimination in favor of blacks “elicited a virtually unanimous public condemnation.…The traditional liberalism shared by most of the civil rights establishment was philosophically offended by the notion of racial preference.”36
The opposition to, and absence of support for, positive discrimination in Congress was evidenced in the debate over Title VII of the 1964 Civil Rights Act, the provision that prohibits racial discrimination across large areas of employment. Opponents repeatedly charged that Title VII would compel employers to avoid racial imbalance by hiring or promoting blacks regardless of their qualifications for employment. In response, proponents insisted that Title VII’s mission was antidiscrimination, not rectification, that it aimed to prohibit racial selectivity going forward, not compensation for past wrongs, that it sought the removal of racial considerations from personnel decision making, not the institutionalization of racial balance. As Senator Hubert Humphrey declared,
Contrary to the allegations of some opponents of this title, there is nothing in it that will give any power [to any agency or court] to require hiring, firing, or promotion of employees in order to meet a racial “quota” or to achieve a certain racial balance.
That bugaboo has been brought up a dozen times; but it is nonexistent. In fact, the very opposite is true. Title VII prohibits discrimination. In effect, it says that race, religion and national origin are not to be used as the basis for hiring and firing. Title VII is designed to encourage hiring on the basis of ability and qualifications, not race or religion.37
On another occasion, Humphrey averred,
[Title VII] does not provide that any preferential treatment in employment shall be given to Negroes or to any other persons or groups.…In fact [the legislation] would prohibit preferential treatment for any particular group.38
Senatorial allies echoed Humphrey. Under Title VII, Senator Thomas Henry Kuchel insisted, “employers and labor organizations could not discriminate in favor or against a person because of his race, his religion, or his national origin. In such matters … the bill now before us … is color blind.” Similarly, according to Senators Joseph S. Clark and Clifford P. Case, the reach of Title VII
is prospective not retrospective. Thus, for example, if a business has been discriminating in the past and as a result has an all-white working force, when [Title VII] comes into effect the employer’s obligation would be simply to fill future vacancies on a n
on- discriminatory basis. He would not be obligated—or indeed permitted—to fire whites in order to hire Negroes, or prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers hired earlier.39
In reading the legislative history of the 1964 Civil Rights Act, one must, of course, be attentive to the circumstances in which members of Congress were speaking. The principal purpose of those supporters of Title VII cited above was not to offer a considered view on the merits of affirmative action; it was to negate the efforts of white supremacists who opposed any intervention that might emancipate blacks from the strictures of Jim Crow subordination. Just as opponents of the first Reconstruction used the specter of “miscegenation” to embarrass the proponents of federal civil rights legislation in the 1860s, so, too, did opponents of the second Reconstruction use the specter of “preferential treatment” to embarrass the proponents of civil rights legislation in the 1960s. To some extent, therefore, the words of Senator Humphrey and his allies forswearing affirmative action should be understood as mere strategic feints. To some extent, though, their disavowal of preferential treatment was an authentic representation of early-1960s white racial liberalism of a certain sort—a perspective commendably opposed to invidious discrimination, but a perspective that, regrettably, underestimated the barriers that would continue to ensnare racial minorities even after the passage of Title VII and other antidiscrimination legislation.40
LYNDON JOHNSON, RICHARD NIXON, BLACK MILITANCY, AND THE NEW AFFIRMATIVE ACTION OF THE 1970S
It was not until the late 1960s and early 1970s that there arose another affirmative action regime, the one that remains controversial today: widespread public- and private-sector programs that channel benefits on an expressly racial basis to groups that are deemed in need of special assistance. The new affirmative action emerged fitfully, on an ad hoc basis, often in settings cloaked by low visibility at the behest of influential but obscure bureaucrats. There was no grand, national, centralized, openly deliberated decision. There was, instead, an accretion of local decisions reflecting a wide range of motivations, aims, strategies, and justifications. These decisions generated special recruitment efforts, racially exclusive scholarships, set-asides for minority-owned businesses, advantageous “breaks” to racial-minority candidates for coveted educational and employment opportunities, and efforts to lure, retain, and promote minority workers to industries or occupations from which they had previously been barred or where, for some other reason, they were scarce or absent.l
A confluence of events, personalities, and sentiments led to the affirmative action breakthrough. By the mid-1960s even moderate civil rights leaders were demanding “Freedom Now,” “Equality Now,” and “Desegregation Now.”m Radicals pushed the point further. In May 1969, James Forman, a former leader of the Student Non-Violent Coordinating Committee (SNCC) and the Black Panther Party, interrupted services at the Riverside Church, in New York City, to unveil his Black Manifesto, in which he demanded $500,000 in reparations for the mistreatment of black Americans. Forman did not obtain much concretely in the short run. He and like-minded actors, however, gave new vitality and prominence to the call for reparations, a demand much derided, but one that has subsequently remained an important concept in American political culture.
Dissatisfaction with the pace of change spread from protesters to government officials, including federal judges. Consider public school desegregation. In 1954, the Supreme Court of the United States ruled in Brown v. Board of Education and Bolling v. Sharpe that it was a violation of the federal Constitution for governments to segregate students in public schools on a racial basis. In spelling out the terms for complying with these rulings, the Court was permissive, requiring only a good-faith start toward desegregation and an understanding that the process might be able to unfold only with “all deliberate speed.” For more than a decade the Court permitted local authorities to delay to the point of open obstruction. But by the tenth anniversary of Brown, the demographics of public schooling in the South had changed hardly at all. In 1964, the vast majority of Negro students attended the same schools that they would have attended had Brown never been decided. Some local authorities refused to change anything in the absence of court orders. Others put the burden of desegregation squarely on the backs of blacks, many of whom refrained from leaving “their” schools out of realistic fears of retaliation. By 1968, the Court’s patience was exhausted. It finally declared that the time for “all deliberate speed” had passed and that a new day had arrived—the day of desegregation now. In Green v. County School Board,41 the Court confronted a jurisdiction in which authorities had removed the official color bar separating white and black students. Whites were free to attend the historically black school, while blacks were free to attend the historically white school. Yet, with a few exceptions (all of whom were African Americans), students under “freedom of choice” attended the same schools they would have attended under segregation. The Supreme Court concluded that freedom of choice that yielded the same racial patterns as those that existed under de jure segregation was an insufficient response to Brown. It demanded an actual change in the racial demographics of schools so that there would be no more white schools or black schools but “just schools.” The Court, in other words, demanded that authorities engage in race-conscious policymaking for the purpose of effecting actual, as opposed to merely nominal, desegregation. Three years after Green, in Swann v. Charlotte-Mecklenburg Board of Education,42 the Supreme Court upheld judicially mandated busing with racial balancing requirements, ruling that, at least in jurisdictions that were once governed by segregation, courts could properly demand integration now through racially selective means.
President Lyndon Baines Johnson also helped prepare the way for affirmative action. In addition to guiding the enactment of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, he voiced the urgent dissatisfaction that gripped Americans who were energized by the Civil Rights Revolution but flustered by its seeming inability to improve the material circumstances in which many Negroes, particularly poor blacks, found themselves. An example is the speech LBJ delivered at Howard University on June 4, 1965.43 Two features of this speech are pertinent here. One is its searing critique of the mistreatment of blacks. “In far too many ways,” President Johnson averred, “American Negroes have been another nation: deprived of freedom, crippled by hate, the doors of opportunity closed to hope.” Johnson acknowledged elements of positive change, noting, for instance, that the number of blacks in schools of higher learning had almost doubled in the previous fifteen years. The story of the growing black middle class, he observed, was an impressive achievement. “But for the great majority of Negro Americans—the poor, the unemployed, the uprooted, and the dispossessed—there is a much grimmer story. They still … are another nation. Despite the court orders and the laws … for them the wells are rising and the gulf is widening.…In the battle for equality too many—far too many—are losing ground every day.”
The other pertinent feature is LBJ’s declaration that while freedom and equal opportunity are essential, even combined they are insufficient to overcome the obstacles erected by racial oppression in the past. According to Johnson: “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 others,’ and still justly believe that you have been completely fair.” Although he did not elaborate upon the “hobbled by chains” metaphor, one implication is that ending invidious discrimination without attending to its destructive vestiges would be unjust. “It is not enough,” Johnson asserted, “just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.” According to LBJ, “we seek not just legal equity but human ability, not just equality as a right but equality as a fact and equality as a result.” While there was little programmatic follow-up to the speech, that a pr
esident articulated such a sweeping criticism and far-reaching (albeit vague) prescription helps to explain how affirmative action emerged despite the powerful forces arrayed against it.
Distrust was another emotion that helped to prompt the emergence of affirmative action. In many settings, the mere assertion that authorities had engaged in a nondiscriminatory process no longer sufficed—especially if an ostensibly fair process generated results similar to those that could reflect a process infected by prejudice. Observers wanted clear proof of nondiscrimination, with the best evidence being the actual presence of African Americans and others who had long been purposefully excluded for reasons of race. Commenting on unprecedented actions taken by his company to hire and retain black workers, an executive stated that they constituted “discrimination in reverse” but defended them anyway. “Such steps are required,” he observed, “to convince the Negroes that we are serious and want them to apply for work with us.”44 Coleman Young, Detroit’s first black mayor, would have agreed. Recalling his support for hard-edged affirmative action in his city’s police department, Young candidly explained, “If quotas are the only way to keep white folks honest, let there be quotas.”45
A belated but decent shame seeped into important precincts of American life as revelations of long-ignored facts and revisions of well-known narratives emerged, underscoring the egregious ways in which racism had been deployed to subordinate people of color.46 Disturbed by this unflattering portrayal of the American past and present, some onlookers began lending their support not only to antidiscrimination but also to rectification and reconciliation. An example is the Report of the National Advisory Commission on Civil Disorders. Lyndon Johnson created the commission on July 28, 1967, in the aftermath of rioting in Newark, Detroit, and other cities. The commission was charged with investigating the causes of the rioting and recommending responses. The most striking feature of the report was its allocation of blame: “What white Americans have never fully understood—but what the Negro can never forget—is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.” Even though the commission was acting soon after the high tide of the civil rights movement, it nonetheless declared (echoing the president’s speech at Howard), “Our nation is moving toward two societies, one black, one white—separate and unequal.”
Race, Affirmative Action, and the Law Page 4
