The Fundamental Crisis and Foundational Contradiction Facing the United States During the Upcoming Presidential Election Year of 2024: Fascism guided, informed, and enabled by the Doctrines and Practices of White Supremacy and Global Capitalism--PART 22

https://www.nytimes.com/2024/03/13/magazine/nikole-hannah-jones-colorblind-racial-justice.html

Five Takeaways From Nikole Hannah-Jones’s Essay on the ‘Colorblindness’ Trap

How a 50-year campaign has undermined the progress of the civil rights movement.

PHOTO:  Credit:  Shuran Huang for The New York Times

by Nikole Hannah-Jones 

March 13, 2024
New York Times

 

[Nikole Hannah-Jones is a staff writer at the magazine and the creator of The 1619 Project. She also teaches race and journalism at Howard University.]

Last June, the Supreme Court ruled that affirmative action in college admissions was not constitutional. After the decision, much of the discussion was about its impact on the complexions of college campuses. But in an essay in The Times Magazine, I argue that we were missing the much bigger and more frightening story: that the death of affirmative action marks the culmination of a radical 50-year strategy to subvert the goal of colorblindness put forth by civil rights activists, by transforming it into a means of undermining racial justice efforts in a way that will threaten our multiracial democracy.

What do I mean by this? Here are the basic points of my essay:

The affirmative-action ruling could bring about sweeping changes across American society.

Conservatives are interpreting the court’s ruling broadly, and since last summer, they have used it to attack racial-justice programs outside the field of higher education. Since the decision, conservative groups have filed and threatened lawsuits against a range of programs that consider race, from diversity fellowships at law firms to maternal-health programs. One such group has even challenged the medical school of Howard University, one of the nation’s pre-eminent historically Black universities. Founded to educate people who had been enslaved, Howard’s mission has been to serve Black Americans who had for generations been systematically excluded from American higher education. These challenges to racial-justice programs will have a lasting impact on the nation’s ability to address the vast disparities that Black people experience.

Conservatives have co-opted the civil rights language of ‘colorblindness.’

In my essay, I demonstrate that these challenges to racial-justice programs often deploy the logic of “colorblindness,” the idea that the Constitution prohibits the use of race to distinguish citizens and that the goal of a diverse, democratic nation should be a society in which race does not determine outcomes for anyone. Civil rights leaders used the idea of colorblindness to challenge racial apartheid laws and policies, but over the last 50 years, conservatives have successfully co-opted both the rhetoric and the legal legacy of the civil rights era not to advance racial progress, but to stall it. And, I’d argue, reverse it.

Though the civil rights movement is celebrated and commemorated as a proud period in American history, it faced an immediate backlash. The progressive activists who advanced civil rights for Black Americans argued that in a society that used race against Black Americans for most of our history, colorblindness is a goal. They believed that achieving colorblindness requires race-conscious policies, such as affirmative action, that worked specifically to help Black people overcome their disadvantages in order to get to a point where race no longer hindered them. Conservatives, however, invoke the idea of colorblindness to make the case that race-conscious programs, even to help those whose race had been used against them for generations, are antithetical to the Constitution. In the affirmative-action decision, Chief Justice John G. Roberts Jr., writing for the majority, embraced this idea of colorblindness, saying: “Eliminating racial discrimination means eliminating all of it.”

The Supreme Court’s decision undermines attempts to eliminate racial inequality that descendants of slavery suffer.

But mandating colorblindness in this way erases the fact that Black Americans still suffer inequality in every measurable aspect of American life — from poverty to access to quality neighborhoods and schools to health outcomes to wealth — and that this inequality stems from centuries of oppressive race-specific laws and policies. This way of thinking about colorblindness has reached its legal apotheosis on the Roberts court, where through rulings on schools and voting the Supreme Court has helped constitutionalize a colorblindness that leaves racial disparities intact while striking down efforts to ameliorate them.

These past decisions have culminated in Students for Fair Admissions v. Harvard, which can be seen as the Supreme Court clearing the way to eliminate the last legal tools to try to level the playing field for people who descend from slavery.

Affirmative action should not simply be a tool for diversity but should alleviate the particular conditions of descendants of slavery.

Part of the issue, I argue, is that the purpose of affirmative action got muddled in the 1970s. It was originally designed to reduce the suffering and improve the material conditions of people whose ancestors had been enslaved in this country. But the Supreme Court’s decision in the 1978 Bakke case changed the legally permissible goals of affirmative action, turning it into a generalized diversity program. That has opened the door for conservatives to attack the program for focusing on superficial traits like skin color, rather than addressing affirmative action's original purpose, which was to provide redress for the disadvantages descendants of slavery experienced after generations of oppression and subordination.

Working toward racial justice is not just the moral thing to do, but it is also crucial to our democracy.

When this country finally abolished slavery, it was left with a fundamental question: How does a white-majority nation, which wielded race-conscious policies and laws to enslave and oppress Black people, create a society in which race no longer matters? After the short-lived period of Reconstruction, lawmakers intent on helping those who had been enslaved become full citizens passed a slate of race-conscious laws. Even then, right at the end of slavery, the idea that this nation owed something special to those who had suffered under the singular institution of slavery faced strident opposition, and efforts at redress were killed just 12 years later with Reconstruction’s end. Instead, during the nearly 100-year period known as Jim Crow, descendants of slavery were violently subjected to a dragnet of racist laws that kept them from most opportunities and also prevented America from becoming a true democracy. During the civil rights era, when Black Americans were finally assured full legal rights of citizenship, this question once again presented itself: In order to address the disadvantage Black Americans faced, do we ignore race to eliminate its power, or do we consciously use race to undo its harms? Affirmative action and other racial-justice programs were born of that era, but now, once again, we are in a period of retrenchment and backlash that threatens the stability of our nation. My essay argues that if we are to preserve our multiracial democracy, we must find a way to address our original sin.

 

ABOUT THE AUTHOR:

Nikole Hannah-Jones is a domestic correspondent for The New York Times Magazine focusing on racial injustice. Her extensive reporting in both print and radio has earned a Pulitzer Prize, National Magazine Award, Peabody and a Polk Award. 

More about Nikole Hannah-Jones

 

The Fundamental Crisis and Foundational Contradiction Facing the United States During the Upcoming Presidential Election Year of 2024: Fascism guided, informed, and enabled by the Doctrines and Practices of White Supremacy and Global Capitalism--PART 21

https://www.nytimes.com/2024/03/13/magazine/civil-rights-affirmative-action-colorblind.html

 

The 'Colorblindness' Trap: How a Civil Rights Ideal Got Hijacked
by Nikole Hannah-Jones
March 13, 2024
New York Times

[Nikole Hannah-Jones is a staff writer at the magazine and is the creator of The 1619 Project. She also teaches race and journalism at Howard University]

Anthony K. Wutoh, the provost of Howard University, was sitting at his desk last July when his phone rang. It was the new dean of the College of Medicine, and she was worried. She had received a letter from a conservative law group called the Liberty Justice Center. The letter warned that in the wake of the Supreme Court’s decision striking down affirmative action in college admissions, the school “must cease” any practices or policies that included a “racial component” and said it was notifying medical schools across the country that they must eliminate “racial discrimination” in their admissions. If Howard refused to comply, the letter threatened, the organization would sue.


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Wutoh told the dean to send him the letter and not to respond until she heard back from him. Hanging up, he sat there for a moment, still. Then he picked up the phone and called the university’s counsel: This could be a problem.

Like most university officials, Wutoh was not shocked in June when the most conservative Supreme Court in nearly a century cut affirmative action’s final thin thread. In Students for Fair Admissions v. Harvard, the court invalidated race-conscious admissions programs at Harvard and the University of North Carolina at Chapel Hill. Universities across the nation had been preparing for the ruling, trying both to assess potential liabilities and determine the best response.But Howard is no ordinary university. Chartered by the federal government two years after the Civil War, Howard is one of about 100 historically Black colleges and universities, known as H.B.C.U.s. H.B.C.U. is an official government designation for institutions of higher learning founded from the time of slavery through the end of legal apartheid in the 1960s, mostly in the South. H.B.C.U.s were charged with educating the formerly enslaved and their descendants, who for most of this nation’s history were excluded from nearly all of its public and private colleges.


Five Takeaways From Nikole Hannah-Jones’s Essay on the ‘Colorblindness’ Trap
March 13, 2024


Though Howard has been open to students of all races since its founding in 1867, nearly all of its students have been Black. And so after the affirmative-action ruling, while elite, predominantly white universities fretted about how to keep their Black enrollments from shrinking, Howard (where I am a professor) and other H.B.C.U.s were planning for a potential influx of students who either could no longer get into these mostly white colleges or no longer wanted to try.

Wutoh thought it astounding that Howard — a university whose official government designation and mandate, whose entire reason for existing, is to serve a people who had been systematically excluded from higher education — could be threatened with a lawsuit if it did not ignore race when admitting students. “The fact that we have to even think about and consider what does this mean and how do we continue to fulfill our mission and fulfill the reason why we were founded as an institution and still be consistent with the ruling — I have to acknowledge that we have struggled with this,” he told me. “My broader concern is this is a concerted effort, part of an orchestrated plan to roll back many of the advances of the ’50s and ’60s. I am alarmed. It is absolutely regressive.”

Howard University, which was founded to serve people who had been systematically excluded from higher education, faces the threat of a lawsuit if its medical school does not ignore race when admitting students. Credit:  Michael A. McCoy for The New York Times

Wutoh has reason to be alarmed. Conservative groups have spent the nine months since the affirmative-action ruling launching an assault on programs designed to explicitly address racial inequality across American life. They have filed a flurry of legal challenges and threatened lawsuits against race-conscious programs outside the realm of education, including diversity fellowships at law firms, a federal program to aid disadvantaged small businesses and a program to keep Black women from dying in childbirth. These conservative groups — whose names often evoke fairness and freedom and rights — are using civil rights law to claim that the Constitution requires “colorblindness” and that efforts targeted at ameliorating the suffering of descendants of slavery illegally discriminate against white people. They have co-opted both the rhetoric of colorblindness and the legal legacy of Black activism not to advance racial progress, but to stall it. Or worse, reverse it.During the civil rights era, this country passed a series of hard-fought laws to dismantle the system of racial apartheid and to create policies and programs aimed at repairing its harms. Today this is often celebrated as the period when the nation finally triumphed over its original sin of slavery. But what this narrative obscures is that the gains of the civil rights movement were immediately met with a backlash that sought to subvert first the language and then the aims of the movement. Over the last 50 years, we have experienced a slow-moving, near-complete unwinding of the idea that this country owes anything to Black Americans for 350 years of legalized slavery and racism. But we have also undergone something far more dangerous: the dismantling of the constitutional tools for undoing racial caste in the United States.

Beginning in the 1970s, the Supreme Court began to vacillate on remedies for descendants of slavery. And for the last 30 years, the court has almost exclusively ruled in favor of white people in so-called reverse-discrimination cases while severely narrowing the possibility for racial redress for Black Americans. Often, in these decisions, the court has used colorblindness as a rationale that dismisses both the particular history of racial disadvantage and its continuing disparities.

This thinking has reached its legal apotheosis on the court led by Chief Justice John G. Roberts Jr. Starting with the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1, the court found that it wasn’t the segregation of Black and Latino children that was constitutionally repugnant, but the voluntary integration plans that used race to try to remedy it. Six years later, Roberts wrote the majority opinion in Shelby v. Holder, gutting the Voting Rights Act, which had ensured that jurisdictions could no longer prevent Black Americans from voting because of their race. The act was considered one of the most successful civil rights laws in American history, but Roberts declared that its key provision was no longer needed, saying that “things have changed dramatically.” But a new study by the Brennan Center for Justice found that since the ruling, jurisdictions that were once covered by the Voting Rights Act because of their history of discrimination saw the gap in turnout between Black and white voters grow nearly twice as quickly as in other jurisdictions with similar socioeconomic profiles.

These decisions of the Roberts court laid the legal and philosophical groundwork for the recent affirmative-action case. Students for Fair Admissions v. Harvard involved two of the country’s oldest public and private universities, both of which were financed to a significant degree with the labor of the enslaved and excluded slavery’s descendants for most of their histories. In finding that affirmative action was unconstitutional, Roberts used the reasoning of Brown v. Board of Education to make the case that because “the Constitution is colorblind” and “should not permit any distinctions of law based on race or color,” race cannot be used even to help a marginalized group. Quoting the Brown ruling, Roberts argued that “the mere act of ‘separating children’” because of their race generated “ ‘a feeling of inferiority’” among students.



But in citing Brown, Roberts spoke generically of race, rarely mentioning Black people and ignoring the fact that this earlier ruling struck down segregation because race had been used to subordinate them. When Chief Justice Earl Warren wrote those words in 1954, he was not arguing that the use of race harmed Black and white children equally. The use of race in assigning students to schools, Warren wrote, referring to an earlier lower-court decision, had “a detrimental effect upon colored children” specifically, because it was “interpreted as denoting the inferiority of the Negro group.”

Roberts quickly recited in just a few paragraphs the centuries-long legacy of legal discrimination against Black Americans. Then, as if flicking so many crumbs from the table, he used the circular logic of conservative colorblindness to dispatch that past with a pithy line: “Eliminating racial discrimination means eliminating all of it.”

By erasing the context, Roberts turned colorblindness on its head, reinterpreting a concept meant to eradicate racial caste to one that works against racial justice.

Roberts did not invent this subversion of colorblindness, but his court is constitutionalizing it. While we seem to understand now how the long game of the anti-abortion movement resulted in a historically conservative Supreme Court that last year struck down Roe v. Wade, taking away what had been a constitutional right, Americans have largely failed to see that a parallel, decades-long antidemocratic racial strategy was occurring at the same time. The ramifications of the recent affirmative-action decision are clear — and they are not something so inconsequential as the complexion of elite colleges and the number of students of color who attend them: We are in the midst of a radical abandonment of a compact that the civil rights movement forged, a shared understanding that racial inequality is harmful to democracy.The End of Slavery, and the Instant Backlash


When this country finally eliminated first slavery and then racial apartheid, it was left with a fundamental question: How does a white-majority nation, which for nearly its entire history wielded race-conscious policies and laws that oppressed and excluded Black Americans, create a society in which race no longer matters? Do we ignore race in order to eliminate its power, or do we consciously use race to undo its harms?

Our nation has never been able to resolve this tension. Race, we now believe, should not be used to harm or to advantage people, whether they are Black or white. But the belief in colorblindness in a society constructed on the codification of racial difference has always been aspirational. And so achieving it requires what can seem like a paradoxical approach: a demand that our nation pay attention to race in order, at some future point, to attain a just society. As Justice Thurgood Marshall said in a 1987 speech, “The ultimate goal is the creation of a colorblind society,” but “given the position from which America began, we still have a very long way to go.”

Racial progress in the United States has resulted from rare moments of national clarity, often following violent upheavals like the Civil War and the civil rights movement. At those times, enough white people in power embraced the idea that racial subordination is antidemocratic and so the United States must counter its legacy of racial caste not with a mandated racial neutrality or colorblindness but with sweeping race-specific laws and policies to help bring about Black equality. Yet any attempt to manufacture equality by the same means that this society manufactured inequality has faced fierce and powerful resistance.

This resistance began as soon as slavery ended. After generations of chattel slavery, four million human beings were suddenly being emancipated into a society in which they had no recognized rights or citizenship, and no land, money, education, shelter or jobs. To address this crisis, some in Congress saw in the aftermath of this nation’s deadliest war the opportunity — but also the necessity — for a second founding that would eliminate the system of racial slavery that had been its cause. These men, known as Radical Republicans, believed that making Black Americans full citizens required color-consciousness in policy — an intentional reversal of the way race had been used against Black Americans. They wanted to create a new agency called the Freedmen’s Bureau to serve “persons of African descent” or “such persons as once had been slaves” by providing educational, food and legal assistance, as well as allotments of land taken from the white-owned properties where formerly enslaved people were forced to work.

Understanding that “race” was created to force people of African descent into slavery, their arguments in Congress in favor of the Freedmen’s Bureau were not based on Black Americans’ “skin color” but rather on their condition. Standing on the Senate floor in June 1864, Senator Charles Sumner quoted from a congressional commission’s report on the conditions of freed people, saying, “We need a Freedmen’s Bureau not because these people are Negroes but because they are men who have been for generations despoiled of their rights.” Senator Lyman Trumbull, an author of the 13th Amendment, which abolished slavery, declared: “The policy of the states where slavery has existed has been to legislate in its interest. … Now, when slavery no longer exists, the policy of the government must be to legislate in the interest of freedom.” In a speech to Congress, Trumbull compelled “the people of the rebellious states” to be “as zealous and active in the passage of laws and the inauguration of measures to elevate, develop and improve the Negro as they have hitherto been to enslave and degrade him.”

A school for formerly enslaved people in the late 1860s that was created as part of the Freedmen’s Bureau. Credit:  John D. Heywood/Smithsonian National Museum of African American History and Culture


But there were also the first stirrings of an argument we still hear today: that specifically aiding those who, because they were of African descent, had been treated as property for 250 years was giving them preferential treatment. Two Northern congressmen, Martin Kalbfleish, a Dutch immigrant and former Brooklyn mayor, and Anthony L. Knapp, a representative from Illinois, declared that no one would give “serious consideration” to a “bureau of Irishmen’s affairs, a bureau of Dutchmen’s affairs or one for the affairs of those of Caucasian descent generally.” So they questioned why the freedmen should “become these marked objects of special legislation, to the detriment of the unfortunate whites.” Representative Nelson Taylor bemoaned the Freedmen’s Bureau Act of 1866, which he accused of making a “distinction on account of color between two races.” He argued, “This, sir, is what I call class legislation — legislation for a particular class of the Blacks to the exclusion of all whites.”

Ultimately, the Freedmen’s Bureau bills passed, but only after language was added to provide assistance for poor white people as well. Already, at the very moment of racial slavery’s demise, we see the poison pill, the early formulation of the now-familiar arguments that helping a people who had been enslaved was somehow unfair to those who had not, that the same Constitution that permitted and protected bondage based on race now required colorblindness to undo its harms.

This logic helped preserve the status quo and infused the responses to other Reconstruction-era efforts that tried to ensure justice and equality for newly freed people. President Andrew Johnson, in vetoing the 1866 Civil Rights Act,which sought to grant automatic citizenship to four million Black people whose families for generations had been born in the United States, argued that it “proposes a discrimination against large numbers of intelligent, worthy and patriotic foreigners,” who would still be subjected to a naturalization process “in favor of the Negro.” Congress overrode Johnson’s veto, but this idea that unique efforts to address the extraordinary conditions of people who were enslaved or descended from slavery were unfair to another group who had chosen to immigrate to this country foreshadowed the arguments about Asian immigrants and their children that would be echoed 150 years later in Students for Fair Admissions.

As would become the pattern, the collective determination to redress the wrongs of slavery evaporated under opposition. Congress abolished the Freedmen’s Bureau in 1872. And just 12 years after the Civil War, white supremacists and their accommodationists brought Reconstruction to a violent end. The nation’s first experiment with race-based redress and multiracial democracy was over. In its place, the Supreme Court in Plessy v. Ferguson in 1896 ushered in the period of official racial apartheid when it determined that “the enforced separation of the races … neither abridges the privileges or immunities of the colored man … nor denies him the equal protection of the laws.” Over the next six decades, the court condoned an entire code of race law and policies designed to segregate, marginalize, exclude and subjugate descendants of slavery across every realm of American life. The last of these laws would stand until 1968, less than a decade before I was born.


Thurgood Marshall’s Path to Desegregation

In 1930, a young man named Thurgood Marshall, a native son of Baltimore, could not attend the University of Maryland’s law school, located in the city and state where his parents were taxpaying citizens. The 22-year-old should have been a shoo-in for admission. An academically gifted student, Marshall had become enamored with the Constitution after his high school principal punished him for a prank by making him read the founding document. Marshall memorized key parts of the Constitution, especially the Bill of Rights. After enrolling at Lincoln University, a prestigious Black institution, he joined the debate team and graduated with honors.

But none of that mattered. Only one thing did: Marshall was a descendant of slavery, and Black people, no matter their intellect, ambition or academic record, were barred by law from attending the University of Maryland. Marshall enrolled instead at Howard University Law School, where he studied under the brilliant Charles Hamilton Houston, whose belief that “a lawyer is either a social engineer or he’s a parasite on society” had turned the law school into the “West Point of civil rights.”

It was there that Marshall began to see the Constitution as a living document that must adapt to and address the times. He joined with Houston in crafting the strategy that would dismantle legal apartheid. After graduating as valedictorian, in one of his first cases, Marshall sued the University of Maryland. He argued that the school was violating the 14th Amendment, which granted the formerly enslaved citizenship and ensured Black Americans “equal protection under the law,” by denying Black students admission solely because of their race without providing an alternative law school for Black students. Miraculously, he won.


Thurgood Marshall (left) with his client Donald Gaines Murray, who was denied admission to the University of Maryland Law School, and his fellow attorney Charles Hamilton Houston in 1935. Credit:  Bridgeman Images


Nearly two decades later, Marshall stood before the Supreme Court on behalf of the NAACP Legal Defense Fund in Brown v. Board of Education, arguing that the equal-protection clause enshrined in the 14th Amendment did not abide the use of racial classifications to segregate Black students. Marshall was not merely advancing a generic argument that the Constitution commands blindness to color or race. The essential issue, the reason the 14th Amendment existed, he argued, was not just because race had served as a means of classifying people, but because race had been used to create a system to oppress descendants of slavery — people who had been categorized as Black. Marshall explained that racial classification was being used to enforce an “inherent determination that the people who were formerly in slavery, regardless of anything else, shall be kept as near that stage as is possible.” The court, he said, “should make it clear that that is not what our Constitution stands for.” He sought the elimination of laws requiring segregation, but also the segregation those laws had created.

The Supreme Court, in unanimously striking down school segregation in its Brown decision, did not specifically mention the word “colorblind,” but its ruling echoed the thinking about the 14th Amendment in John Marshall Harlan’s lone dissent in Plessy v. Ferguson. “There is no caste here,” Harlan declared. “Our constitution is colorblind, and neither knows nor tolerates classes among citizens.” But he also made it clear that colorblindness was intended to eliminate the subordination of those who had been enslaved, writing, “In respect of civil rights, all citizens are equal before the law.” He continued, “The arbitrary separation of citizens on the basis of race … is a badge of servitude.”

The court’s ruling in Brown v. Board of Education was not merely a moral statement but a political one. Racial segregation and the violent suppression of democracy among its Black citizens had become a liability for the United States during the Cold War, as the nation sought to stymie Communism’s attraction in non-European nations. Attorney General James P. McGranery submitted a brief to the Supreme Court on behalf of the Truman administration supporting a ruling against school segregation, writing: “It is in the context of the present world struggle between freedom and tyranny that the problem of racial discrimination must be viewed. The United States is trying to prove to the people of the world of every nationality, race and color that a free democracy is the most civilized and most secure form of government yet devised by man. … Racial discrimination furnishes grist for the Communist propaganda mills.”



 

Linda and Terry Lynn Brown, whose father was the lead plaintiff in Brown v. Board of Education, outside the racially segregated Monroe Elementary School in Topeka, Kan., in 1953. Credit:  Carl Iwasaki/Getty Images


Civil rights activists were finally seeing their decades-long struggle paying off. But the architects and maintenance crew of racial caste understood a fundamental truth about the society they had built: Systems constructed and enforced over centuries to subjugate enslaved people and their descendants based on race no longer needed race-based laws to sustain them. Racial caste was so entrenched, so intertwined with American institutions, that without race-based counteraction, it would inevitably self-replicate.

One can see this in the effort to desegregate schools after the Brown v. Board of Education ruling. Across the country, North and South, white officials eliminated laws and policies mandating segregation but also did nothing to integrate schools. They maintained unofficial policies of assigning students to schools based on race, adopting so-called race-neutral admissions requirements designed to eliminate most Black applicants from white schools, and they drew school attendance zones snugly around racially segregated neighborhoods. Nearly a decade after Brown v. Board, educational colorblindness stood as the law of the land, and yet no substantial school integration had occurred. In fact, at the start of 1963, in Alabama and Mississippi, two of the nation’s most heavily Black states, not a single Black child attended school with white children.

By the mid-1960s, the Supreme Court grew weary of the ploys. It began issuing rulings trying to enforce actual desegregation of schools. And in 1968, in Green v. New Kent County, the court unanimously decided against a Virginia school district’s “freedom-of-choice plan” that on its face adhered to the colorblind mandate of Brown but in reality led to almost no integration in the district. “The fact that in 1965 the Board opened the doors of the former ‘white’ school to Negro children and of the ‘Negro’ school to white children merely begins, not ends, our inquiry whether the Board has taken steps adequate to abolish its dual, segregated system,” the court determined.


The court ordered schools to use race to assign students, faculty and staff members to schools to achieve integration. Complying with Brown, the court determined, meant the color-conscious conversion of an apartheid system into one without a “ ‘white’ school and a ‘Negro’ school, but just schools.” In other words, the reality of racial caste could not be constitutionally subordinated to the ideal of colorblindness. Colorblindness was the goal, color-consciousness the remedy.

Using Race to End Racial Inequality

Hobart Taylor Jr., a successful lawyer who lived in Detroit, was mingling at a party in the nation’s capital in January 1961 to celebrate the inauguration of Lyndon B. Johnson as vice president of the United States. Taylor had not had any intention of going to the inauguration, but like Johnson, Taylor was a native son of Texas, and his politically active family were early supporters of Johnson. And so at a personal request from the vice president, Taylor reluctantly found himself amid the din of clinking cocktail glasses when Johnson stopped and asked him to come see him in a few days.

Taylor did not immediately go see Johnson. After a second request came in, in February, Taylor found himself in Johnson’s office. The vice president slid into Taylor’s hands a draft of a new executive order to establish the Committee on Equal Employment Opportunity, which Johnson would lead. This was to be one of President John F. Kennedy’s first steps toward establishing civil rights for Black people.

Taylor’s grandfather had been born into slavery, and yet he and Taylor’s father became highly successful and influential entrepreneurs and landowners despite Texas’ strict color line.

The apartheid society Taylor grew up in was changing, and the vice president of the United States had tapped him to help draft its new rules. How could he say no? Taylor had planned on traveling back to Detroit that night, but instead he checked into the Willard Hotel, where he worked so intently on the draft of the executive order that not only did he forget to eat dinner but also he forgot to tell his wife that he wasn’t coming home. The next day, Taylor worked and reworked the draft for what would become Executive Order 10925, enacted in March 1961.

A few years later, in an interview for the John F. Kennedy Library Oral History Program, Taylor would recall what he considered his most significant contribution. The draft he received said employers had to “take action” to ensure that job applicants and employees would not be discriminated against because of their race, creed, color or national origin. Taylor thought the wording needed a propellant, and so inserted the word “affirmative” in front of action. “I was torn between ‘positive’ and ‘affirmative,’ and I decided ‘affirmative’ on the basis of alliteration,” he said. “And that has, apparently, meant a great deal historically in the way in which people have approached this whole thing.”

 

In helping shape the executive order in 1961, Hobart Taylor Jr. added the word “affirmative” to the action employers must take to ensure that job applicants and employees would not be discriminated against. Credit:  Francis Miller/The LIFE Picture Collection, via Shutterstock


Taylor added the word to the order, but it would be the other Texan — a man with a fondness for using the N-word in private — who would most forcefully describe the moral rationale, the societal mandate, for affirmative action. Johnson would push through Congress the 1964, 1965 and 1968 civil rights laws — the greatest civil rights legislation since Reconstruction.

But a deeply divided Congress did not pass this legislation simply because it realized a century after the Civil War that descendants of slavery deserved equal rights. Black Americans had been engaged in a struggle to obtain those rights and had endured political assassinations, racist murders, bombings and other violence. Segregated and impoverished Black communities across the nation took part in dozens of rebellions, and tanks rolled through American streets. The violent suppression of the democratic rights of its Black citizens threatened to destabilize the country and had once again become an international liability as the United States waged war in Vietnam.

But as this nation’s racist laws began to fall, conservatives started to realize that the language of colorblindness could be used to their advantage. In the fall of 1964, Barry Goldwater, a Republican who was running against President Johnson, gave his first major national speech on civil rights. Civil rights leaders like the Rev. Dr. Martin Luther King Jr. and Roy Wilkins had lambasted Goldwater’s presidential nomination, with King saying his philosophy gave “aid and comfort to racists.” But at a carefully chosen venue — the Conrad Hilton in Chicago — in front of a well-heeled white audience unlikely to spout racist rhetoric, Goldwater savvily evoked the rhetoric of the civil rights movement to undermine civil rights. “It has been well said that the Constitution is colorblind,” he said. “And so it is just as wrong to compel children to attend certain schools for the sake of so-called integration as for the sake of segregation. … Our aim, as I understand it, is not to establish a segregated society or an integrated society. It is to preserve a free society.”

Protesters taking part in a march from Selma to Montgomery to demand civil rights in 1965. Credit: Bruce Davidson/Magnum Photos

Counterprotesters awaiting civil rights marchers. Credit:  Spider Martin/Briscoe Center for American History

The argument laid out in this speech was written with the help of William H. Rehnquist. As a clerk for Justice Robert Jackson during the Brown v. Board of Education case, Rehnquist pushed for the court to uphold segregation. But in the decade that passed, it became less socially acceptable to publicly denounce equal rights for Black Americans, and Rehnquist began to deploy the language of colorblindness in a way that cemented racial disadvantage.

White Americans who liked the idea of equality but did not want descendants of slavery moving next door to them, competing for their jobs or sitting near their children in school were exceptionally primed for this repositioning. As Rick Perlstein wrote in his book “Before the Storm: Barry Goldwater and the Unmaking of American Consensus,” when it came to race, Goldwater believed that white Americans “didn’t have the words to say the truth they knew in their hearts to be right, in a manner proper to the kind of men they wanted to see when they looked in the mirror. Goldwater was determined to give them the words.”

In the end, Johnson beat Goldwater in a landslide. Then, in June 1965, a few months after Black civil rights marchers were barbarically beaten on Selma’s Edmund Pettus Bridge and two months before he would sign the historic Voting Rights Act into law, Johnson, now president of a deeply and violently polarized nation, gave the commencement address at Howard University. At that moment, Johnson stood at the pinnacle of white American power, and he used his platform to make the case that the country owed descendants of slavery more than just their rights and freedom.

“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,” Johnson said. “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 a brief moment, it seemed as if a grander, more just vision of America had taken hold. But while Goldwater did not win the election, 14 years later a case went before the Supreme Court that would signal the ultimate victory of Goldwater’s strategy.

 

In his commencement speech at Howard University in 1965, President Lyndon B. Johnson made the case that the country owed descendants of slavery more than just their rights and freedom. Credit: William J. Smith/Associated Press


Claiming Reverse Discrimination

Allan Bakke was enjoying a successful career at NASA when he decided he wanted to become a physician. Bakke grew up in a white middle-class family — his father worked for the Post Office, and his mother taught school. Bakke went to the University of Minnesota, where he studied engineering and joined the R.O.T.C. to help pay for college, and then served four years as a Marine, including seven months in Vietnam. It was there that Bakke became enamored with the medical profession. While still working at NASA, he enrolled in night courses to obtain a pre-med degree. In 1972, while he was in his 30s, Bakke applied to 11 medical schools, including at his alma mater, and was rejected by all 11.

One of the schools that Bakke, who was living in California at the time, applied to was the University of California at Davis. The school received 2,664 applications for 100 spots, and by the time he completed his application, most of the seats had already been filled. Some students with lower scores were admitted before he applied, and Bakke protested to the school, claiming that “quotas, open or covert, for racial minorities” had kept him out. His admission file, however, would show that it was his age that was probably a significant strike against him and not his race.

Bakke applied again the next year, and U.C. Davis rejected him again. A friend described Bakke as developing an “almost religious zeal” to fight what he felt was a system that discriminated against white people in favor of so-called minorities. Bakke decided to sue, claiming he had been a victim of “reverse” discrimination.

The year was 1974, less than a decade after Johnson’s speech on affirmative action and a few years after the policy had begun to make its way onto college campuses. The U.C. Davis medical school put its affirmative-action plan in place in 1970. At the time, its first-year medical-school class of 100 students did not include a single Black, Latino or Native student. In response, the faculty designed a special program to boost enrollment of “disadvantaged” students by reserving 16 of the 100 seats for students who would go through a separate admissions process that admitted applicants with lower academic ratings than the general admissions program.

From 1971 to 1974, 21 Black students, 30 Mexican American students and 12 Asian American students enrolled through the special program, while one Black student, six Mexican Americans and 37 Asian American students were admitted through the regular program. Bakke claimed that his right to equal protection under the 14th Amendment and the 1964 Civil Rights Act had been violated. Though these laws were adopted to protect descendants of slavery from racial discrimination and subordination, Bakke was deploying them to claim that he had been illegally discriminated against because he was white. The case became the first affirmative-action challenge decided by the Supreme Court and revealed just how successful the rhetorical exploitation of colorblindness could be.

Allan Bakke in 1974 on his first day of medical school at the University of California at Davis, after winning a “reverse discrimination” suit against the university.Credit: Walt Zeboski/Associated Press


Justice Lewis Powell, writing for a fractured court in 1978, determined that although the 14th Amendment was written primarily to bridge “the vast distance between members of the Negro race and the white ‘majority,’” the passage of time and the changing demographics of the nation meant the amendment must now be applied universally. In an argument echoing the debates over the Freedmen’s Bureau, Powell said that the United States had grown more diverse, becoming a “nation of minorities,” where “the white ‘majority’ itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals.”

“The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color,” Powell wrote. “If both are not accorded the same protection, then it is not equal.” Powell declared that the medical school could not justify helping certain “perceived” victims if it disadvantaged white people who “bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.”



But who or what, then, did bear the responsibility?

Bakke was raised in Coral Gables, a wealthy, white suburb of Miami whose segregationist founder proposed a plan to remove all Black people from Miami while serving on the Dade County Planning Board, and where the white elementary school did not desegregate until after it was ordered by a federal court to do so in 1970, the same year U.C. Davis began its affirmative-action program. The court did not contemplate how this racially exclusive access to top neighborhoods and top schools probably helped Bakke to achieve the test scores that most Black students, largely relegated because of their racial designation to resource-deprived segregated neighborhoods and educational facilities, did not. It did not mean Bakke didn’t work hard, but it did mean that he had systemic advantages over equally hard-working and talented Black people.

For centuries, men like Powell and Bakke had benefited from a near-100 percent quota system, one that reserved nearly all the seats at this nation’s best-funded public and private schools and most-exclusive public and private colleges, all the homes in the best neighborhoods and all the top, well-paying jobs in private companies and public agencies for white Americans. Men like Bakke did not acknowledge the systemic advantages they had accrued because of their racial category, nor all the ways their race had unfairly benefited them. More critical, neither did the Supreme Court. As members of the majority atop the caste system, racial advantage transmitted invisibly to them. They took notice of their race only when confronted with a new system that sought to redistribute some of that advantage to people who had never had it.

Thus, the first time the court took up the issue of affirmative action, it took away the policy’s power. The court determined that affirmative action could not be used to redress the legacy of racial discrimination that Black Americans experienced, or the current systemic inequality that they were still experiencing. Instead, it allowed that some consideration of a student’s racial background could stand for one reason only: to achieve desired “diversity” of the student body. Powell referred to Harvard’s affirmative-action program, which he said had expanded to include students from other disadvantaged backgrounds, such as those from low-income families. He quoted an example from the plan, which said: “The race of an applicant may tip the balance in his favor, just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a Black student can usually bring something that a white person cannot offer.”

But, of course, a (white) farm boy from Idaho did not descend from people who were enslaved, because they were farmers from Idaho. There were not two centuries of case law arguing over the inherent humanity and rights of farm boys from Idaho. There was no sector of the law, no constitutional provision, that enshrined farm boys from Idaho as property who could be bought and sold. Farm boys from Idaho had no need to engage in a decades-long movement to gain basic rights of citizenship, including the fundamental right to vote. Farm boys from Idaho had not, until just a decade earlier, been denied housing, jobs, the ability to sit on juries and access to the ballot. Farm boys from Idaho had not been forced to sue for the right to attend public schools and universities.

In Bakke, the court was legally — and ideologically — severing the link between race and condition. Race became nothing more than ancestry and a collection of superficial physical traits. The 14th Amendment was no longer about alleviating the extraordinary repercussions of slavery but about treating everyone the same regardless of their “skin color,” history or present condition. With a few strokes of his pen, Powell wiped this context away, and just like that, the experience of 350 years of slavery and Jim Crow was relegated to one thing: another box to check.


Yet at the same time Powell was drafting this ruling, cases of recalcitrant school districts still refusing to integrate Black children were making their way to the Supreme Court. Just 15 years earlier, the federal government called up National Guardsmen to ensure that handfuls of Black students could enroll in white schools.

Indeed, Powell wrote this opinion while sitting on the same court as Thurgood Marshall, who in 1967 became the first Black justice in the Supreme Court’s 178-year history. In Brown, Marshall helped break the back of legalized segregation. Now, as the court deliberated the Bakke case, a frustrated Marshall sent around a two-and-a-half-page typed memo to the other justices. “I repeat, for next to the last time: The decision in this case depends on whether you consider the action of the regents as admitting certain students or as excluding certain other students,” he wrote. “If you view the program as admitting qualified students who, because of this Nation’s sorry history of racial discrimination, have academic records that prevent them from effectively competing for medical school, then this is affirmative action to remove the vestiges of slavery and state imposed segregation by ‘root and branch.’ If you view the program as excluding students, it is a program of ‘quotas’ which violates the principle that the ‘Constitution is color-blind.’”



 

At the end of his lengthy dissent in Bakke v. University of California, Justice Thurgood Marshall pointed out what had become the court’s historic pattern. “After the Civil War,” he wrote, “our government started ‘affirmative action’ programs. This court … destroyed the movement toward complete equality.”Credit...Ed Clark/The LIFE Picture Collection, via Shutterstock


When Marshall’s arguments did not persuade enough justices, he joined with three others in a dissent from a decision that he saw as actively reversing, and indeed perverting, his legacy. They issued a scathing rebuke to the all-white majority, accusing them of letting “colorblindness become 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 also wrote his own dissent, where he ticked off statistic after statistic that revealed the glaring disparities between descendants of slavery and white Americans in areas like infant and maternal mortality, unemployment, income and life expectancy. He argued that while collegiate diversity was indeed a compelling state interest, bringing Black Americans into the mainstream of American life was much more urgent, and that failing to do so would ensure that “America will forever remain a divided society.”



Marshall called out the court’s hypocrisy. “For it must be remembered that, during most of the past 200 years, the Constitution, as interpreted by this court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro,” he wrote. “Now, when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.”

At the end of his lengthy dissent, Marshall pointed out what had become the court’s historic pattern. “After the Civil War, our government started ‘affirmative action’ programs. This court … destroyed the movement toward complete equality,” he wrote. As he said, “I fear that we have come full circle.”

The Reagan Rollback

In 1980, having just secured the Republican nomination for the presidency, Ronald Reagan traveled to Mississippi’s Neshoba County Fair to give an address. It was there in that county, a mere 16 years earlier, that three civil rights workers, James Chaney, Andrew Goodman and Michael Schwerner, were murdered by Klansmen, among the most notorious killings of the civil rights era.

Standing in front of a roaring crowd of about 10,000 white Mississippians, Reagan began his general-election campaign. He did not mention race. He did not need to. Instead he spoke of states’ rights, replicating the language of Confederates and segregationists, to signal his vision for America.

President Ronald Reagan campaigned against affirmative action using rhetoric from the civil rights movement. Credit:  Jack Thornell/Associated Press

Despite the Bakke ruling, affirmative action continued to gain ground in the 1970s, with a deeply divided Supreme Court upholding limited affirmative action in hiring and other areas, and the Jimmy Carter administration embracing race-conscious policies. But Reagan understood the political power of white resistance to these policies, which if allowed to continue and succeed would redistribute opportunity in America.

Once in office, Reagan aggressively advanced the idea that racial-justice efforts had run amok, that Black Americans were getting undeserved racial advantages across society and that white Americans constituted the primary victims of discrimination.

A 1985 New York Times article noted that the Reagan administration was “intensifying its legal attack on affirmative action” across American life, saying the administration “has altered the government’s definition of racial discrimination.” As early as the 1970s, Reagan began using the phrase “reverse discrimination” — what the political scientist Philip L. Fetzer called a “covert political term” that undermined racial redress programs by redefining them as anti-white. Reagan’s administration claimed that race-conscious remedies were illegal and that hiring goals for Black Americans were “a form of racism” and as abhorrent as the “separate but equal” doctrine struck down by Brown v. Board.

Reagan, who had secretly called Black people monkeys and opposed the Civil Rights Act of 1964, opposed the establishment of the Martin Luther King Jr. federal holiday. Yet in the first commemoration of that holiday in 1986, he trotted out King’s words to condemn racial-justice policy. “We’re committed to a society in which all men and women have equal opportunities to succeed, and so we oppose the use of quotas,” he said. “We want a colorblind society, a society that, in the words of Dr. King, judges people not by the color of their skin but by the content of their character.”

This passage from King’s famous 1963 “I Have a Dream” speech has become a go-to for conservatives seeking to discredit efforts to address the pervasive disadvantages that Black Americans face. And it works so effectively because few Americans have read the entire speech, and even fewer have read any of the other speeches or writings in which King explicitly makes clear that colorblindness was a goal that could be reached only through race-conscious policy. Four years after giving his “Dream” speech, King wrote, “A society that has done something special against the Negro for hundreds of years must now do something special for him.” And during a 1968 sermon given less than a week before his assassination, King said that those who opposed programs to specifically help Black Americans overcome their disadvantage “never stop to realize that no other ethnic group has been a slave on American soil. The people who say this never stop to realize that the nation made the Black man’s color a stigma; but beyond this they never stop to realize that they owe a people who were kept in slavery 244 years.”

 

The Rev. Dr. Martin Luther King Jr. made clear that colorblindness was a goal that could be reached only through race-conscious policy. Credit: Leonard Freed/Magnum Photos

But as the sociologist Stuart Hall once wrote, “Those who produce the discourse also have the power to make it true.” Reagan deftly provided the road map to the nation’s racial future. Tapping into white aversion to acknowledging and addressing the singular crimes committed against Black Americans, conservatives, who had not long before championed and defended racial segregation, now commandeered the language of colorblindness, which had been used to dismantle the impacts of legal apartheid. They wrapped themselves in the banner of rhetorical equality while condemning racial-justice activists as the primary perpetrators of racism.

“There’s this really concerted, strategic effort to communicate to white people that racial justice makes white people victims, and that when people demand racial justice, they don’t actually mean justice; they mean revenge,” Ian Haney López, a race and constitutional law scholar at the University of California, Berkeley, told me. “Black people are treated as if they are just any other Americans. There is no history of racial subordination associated with Black people.There is no structural or systemic racism against African Americans. By 1989, it’s over. Reactionary colorblindness has won.”



Diversity vs. Redress

Perhaps no single person has more successfully wielded Reagan’s strategy than Edward Blum. In 1992, Blum, who made his living as a stockbroker, decided to run for Congress as a Republican in a Texas district carved out to ensure Black representation. Blum was trounced by the Black Democratic candidate. He and several others sued, arguing that a consideration of racial makeup when creating legislative districts violated the 14th Amendment’s equal-protection clause. Despite the fact that until a 1944 Supreme Court ruling, Texas had selected candidates through all-white primaries, and the fact that the district had been created in part in response to the state’s history of Black-voter suppression, Blum’s side won the case, forcing a redrawing of legislative districts in a manner that diluted Black and Latino voting power. Since that victory, Blum has mounted a decades-long campaign that has undermined the use of race to achieve racial justice across American life.

Blum is not a lawyer, but his organizations, funded by a mostly anonymous cadre of deep-pocketed conservatives, have been wildly effective. It is Blum, for instance, who was the strategist behind the case against the Voting Rights Act. When the Supreme Court again narrowly upheld affirmative action in college admissions in the early 2000s, Blum set his sights on killing it altogether. In that 2003 case, Grutter v. Bollinger, Justice Sandra Day O’Connor wrote the majority opinion preserving limited affirmative action but putting universities on notice by setting an arbitrary timeline for when the court should determine that enough racial justice will have been achieved. “It has been 25 years since Justice Powell first approved the use of race to further an interest in student-body diversity in the context of public higher education,” O’Connor wrote. “We expect that 25 years from now, the use of racial preferences will no longer be necessary.” The use of the term “racial preferences” is key here. Instead of a policy created to even the playing field for a people who had been systematically held back and still faced pervasive discrimination, affirmative action was cast as a program that punished white Americans by giving unfair preferential treatment to Black Americans.

Blum didn’t wait 25 years to challenge affirmative action. His case brought on behalf of Abigail Fisher, a soft-spoken white woman who sued the University of Texas at Austin, after she was denied admission, went all the way to the Supreme Court. The court ultimately upheld the university’s admissions program. In his second attempt, Blum changed tactics. As he told a gathering of the Houston Chinese Alliance in 2015: “I needed Asian plaintiffs.” In Students for Fair Admissions v. Harvard, Blum’s group argued, and the court agreed, that affirmative-action programs discriminated against Asian Americans and, at the University of North Carolina, also white students. But many saw Blum’s use of another historically marginalized group in the lawsuit as an attempt to neutralize any argument that those targeting affirmative action opposed racial equality.

Blum’s success relied on defining affirmative action as a program about “visual diversity,” treating race as a mere collection of physical traits and not a social construct used to subordinate and stigmatize. When colleges seek diversity, he said, they are “really talking about skin-color diversity. How somebody looks. What’s your skin color? What’s the shape of your eyes? What’s the texture of your hair? Most Americans don’t think that the shape of your eyes tells us much about who you are as an individual. What does your skin color tell the world about who you are as an individual?” This reasoning resounds for many Americans who have also come to think about race simply as what you see.
 
Edward Blum mounted an effective decades-long campaign that has undermined the use of race to achieve racial justice across American life. Credit: Brian Snyder/Reuters


Blum has described racial injustice against Black Americans as a thing of the past — a “terrible scar” on our history. As he awaited the court’s ruling last April, Blum told The Christian Science Monitor that today’s efforts to address that past were discriminatory and in direct conflict with the colorblind goals of Black activism. He said that “an individual’s race or ethnicity should not be used to help that individual or harm that individual in their life’s endeavors” and that affirmative action was “in grave tension with the founding principles of our civil rights movement.” But the civil rights movement has never been about merely eliminating race or racism; it’s also about curing its harms, and civil rights groups oppose Blum’s efforts.

Yet progressives, too, have unwittingly helped to maintain the corrupt colorblind argument that Blum has employed so powerfully, in part because the meaning of affirmative action was warped nearly from its beginning by the Supreme Court’s legal reasoning in Bakke. When the court determined that affirmative-action programs could stand only for “diversity” and not for redress, many advocates and institutions, in order to preserve these programs, embraced the idea that the goal of affirmative action was diversity and inclusiveness and not racial justice. Progressive organizations adopted the lexicon of “people of color” when discussing affirmative-action programs and also flattened all African-descended people into a single category, regardless of their particular lineage or experience in the United States.

Campuses certainly became more “diverse” as admissions offices focused broadly on recruiting students who were not white. But the descendants of slavery, for whom affirmative action originated, remain underrepresented among college students, especially at selective colleges and universities. At elite universities, research shows, the Black population consists disproportionately of immigrants and children of immigrants rather than students whose ancestors were enslaved here.

So, at least on this one thing, Blum is right. Many institutions have treated affirmative-action programs as a means of achieving visual diversity. Doing so has weakened the most forceful arguments for affirmative action, which in turn has weakened public support for such policies. Institutions must find ways, in the wake of the affirmative-action ruling, to address the racism that Black people face no matter their lineage. But using affirmative action as a diversity program — or a program to alleviate disadvantage that any nonwhite person faces — has in actuality played a part in excluding the very people for whom affirmative action and other racial redress programs were created to help.

Demonstrators outside the Supreme Court in 2022 as the justices heard oral arguments in Students for Fair Admissions v. Harvard. Credit:  Shuran Huang for The New York Times


Taking Back the Intent of Affirmative Action

Just as the NAACP Legal Defense Fund used the Brown v. Board of Education ruling as a legal catalyst for eliminating apartheid in all American life, Blum and those of like mind intend to use the affirmative-action ruling to push a sweeping regression in the opposite direction: bringing down this nation’s racial-justice programs and initiatives.

Right after the June ruling, 13 Republican state attorneys general sent letters to 100 of the nation’s biggest companies warning that the affirmative-action ruling prohibits what they call “discriminating on the basis of race, whether under the label of ‘diversity, equity and inclusion’ or otherwise. Treating people differently because of the color of their skin, even for benign purposes, is unlawful and wrong.” Companies that engage in such racial discrimination, the letter threatened, would “face serious legal consequences.”

The letter points to racial-justice and diversity-and-inclusion programs created or announced by companies, particularly after the murder of George Floyd by a white police officer. In response to the killing, a multigenerational protest movement arose and faced violent suppression by law enforcement as it sought to force this nation to see that the descendants of slavery were still suffering and deserved repair. Corporations took a public stance on racial justice, vowing to integrate everything from their boardrooms to their suppliers. Monuments to white supremacists and Confederates that had stood for 100 years were finally vanquished from the public square. And many colleges and other institutions vocally committed to racial justice as an ethos.

But that fragile multiracial coalition — which for a period understood racial redress as a national good needed to secure and preserve our democracy — has been crushed by the same forces that have used racial polarization to crush these alliances in the past. Conservatives have spent the four years since George Floyd’s murder waging a so-called war against “woke” — banning books and curriculums about racism, writing laws that eliminate diversity-and-inclusion programs and prohibiting the teaching of courses even at the college level that are deemed racially “divisive.”

In other words, conservatives have used state power to prepare a citizenry to accept this new American legal order by restricting our ability to understand why so much racial inequality exists, particularly among the descendants of slavery, and why programs like affirmative action were ever needed in the first place.

“Something really stunning and dangerous that has happened during the Trump era is that the right uses the language of colorblindness or anti-wokeness to condemn any references to racial justice,” Haney López told me. “This rhetoric is a massive fraud, because it claims colorblindness toward race but is actually designed to stimulate hyper-race-consciousness among white people. That strategy has worked.”

Today we have a society where constitutional colorblindness dictates that school segregation is unconstitutional, yet most Black students have never attended a majority-white school or had access to the same educational resources as white children. A society with a law prohibiting discrimination in housing and lending, and yet descendants of slavery remain the most residentially, educationally and economically segregated people in the country. A society where employment discrimination is illegal, and yet Black Americans are twice as likely to be unemployed as white Americans, even when they hold college degrees.

Despite these realities, conservative groups are initiating a wave of attacks on racial-equality programs. About 5 percent of practicing attorneys are Black, and yet one of Blum’s groups, the American Alliance for Equal Rights, sued law firms to stop their diversity fellowships. In August, it also sued the Fearless Fund, a venture-capital firm founded by two Black women, which through its charitable arm helps other Black women gain access to funding by giving small grants to businesses that are at least 51 percent owned by Black women. Even though according to the World Economic Forum, Black women receive just 0.34 percent of venture-capital funds in the United States, Blum declared the fund to be racially discriminatory. Another Blum group, Students for Fair Admissions, has now sued the U.S. Military Academy, even though the Supreme Court allowed race-conscious admissions to stand in the military. Another organization, the Center for Individual Rights, has successfully overturned a decades-long Small Business Administration policy that automatically treated so-called minority-owned businesses as eligible for federal contracts for disadvantaged businesses.

Last year, a group called the Californians for Equal Rights Foundation sued the City and County of San Francisco over their funding of several programs aimed at eliminating disparities Black Americans face, including the Abundant Birth Project, which gives stipends for prenatal care, among other supports, to Black women and Pacific Islanders to help prevent them from dying during childbirth. Even though maternal mortality for Black women in the United States is up to four times as high as it is for white women, conservatives argue that programs specifically helping the women most likely to die violate the 14th Amendment. Even as this lawsuit makes its way through the courts, there are signs of why these sorts of programs remain necessary: It was announced last year that the Department of Health and Human Services opened a civil rights investigation into Cedars-Sinai Medical Center in Los Angeles for allegations of racism against Black mothers following the death of a Black woman who went there to give birth.


It is impossible to look at the realities of Black life that these programs seek to address and come to the conclusion that the lawsuits are trying to make society more fair or just or free. Instead they are foreclosing the very initiatives that could actually make it so.

And nothing illuminates that more than the conservative law group’s letter warning Howard — an institution so vaunted among Black Americans that it’s known as the Mecca — that its medical school must stop any admissions practices that have a “racial component.” Howard’s medical school, founded in 1868, remains one of just four historically Black medical schools in the United States. Howard received nearly 9,000 medical-school applicants for 130 open seats in 2023. And while almost all of the students who apply to be Howard undergraduates are Black, because there are so few medical-school slots available, most applicants to Howard’s medical school are not. Since the school was founded to serve descendants of slavery with a mission to educate “disadvantaged students for careers in medicine,” however, most of the students admitted each year are Black.

That has now made it a target, even though Black Americans account for only 5 percent of all U.S. doctors, an increase of just three percentage points in the 46 years since Thurgood Marshall’s dissent in Bakke. Despite affirmative action at predominantly white schools, at least 70 percent of the Black doctors and dentists in America attended an H.B.C.U. H.B.C.U.s also have produced half of the Black lawyers, 40 percent of Black engineers and a quarter of Black graduates in STEM fields.

Even Plessy v. Ferguson, considered perhaps the worst Supreme Court ruling in U.S. history, sanctioned the existence of H.B.C.U.s and other Black-serving organizations. If institutions like Howard or the Fearless Fund cannot work to explicitly assist the descendants of slavery, who still today remain at the bottom of nearly every indicator of success and well-being, then we have decided as a nation that there is nothing we should do to help Black Americans achieve equality and that we will remain a caste society.

What we are witnessing, once again, is the alignment of white power against racial justice and redress. As history has shown, maintaining racial inequality requires constant repression and is therefore antithetical to democracy. And so we must be clear about the stakes: Our nation teeters at the brink of a particularly dangerous moment, not just for Black Americans but for democracy itself.

To meet the moment, our society must forcefully recommit to racial justice by taking lessons from the past. We must reclaim the original intent of affirmative-action programs stretching all the way back to the end of slavery, when the Freedmen’s Bureau focused not on race but on status, on alleviating the conditions of those who had endured slavery. Diversity matters in a diverse society, and American democracy by definition must push for the inclusion of all marginalized people. But remedies for injustice also need to be specific to the harm.

So we, too, must shift our language and, in light of the latest affirmative-action ruling, focus on the specific redress for descendants of slavery. If Yale, for instance, can apologize for its participation in slavery, as it did last month, then why can’t it create special admissions programs for slavery’s descendants — a program based on lineage and not race — just as it does for its legacy students? Corporations, government programs and other organizations could try the same.

Those who believe in American democracy, who want equality, must no longer allow those who have undermined the idea of colorblindness to define the terms. Working toward racial justice is not just the moral thing to do, but it may also be the only means of preserving our democracy.

Race-based affirmative action has died. The fight for racial justice need not. It cannot.



Top photo illustration by Mark Harris. Photograph by Bruce Davidson/Magnum Photos

 

 

ABOUT THE AUTHOR:


Nikole Hannah-Jones is a domestic correspondent for The New York Times Magazine focusing on racial injustice. Her extensive reporting in both print and radio has earned a Pulitzer Prize, National Magazine Award, Peabody and a Polk Award.  

 

More about Nikole Hannah-Jones
 

A version of this article appears in print on March 17, 2024, Page 20 of the Sunday Magazine with the headline: Whitewash. Order Reprints | Today’s Paper