What is Affirmative Action?

I initially wasn’t going to say anything on affirmative action.  That isn’t because it is a hot topic or because I feared internet retaliation.  While legitimate concerns for myself, I initially thought people who are so invested in a topic, must know a lot about it.  I have quickly realized that this isn’t the case.  In our current climate, weighing in on topics that one knows nothing about is a popular way to operate.  And, unfortunately, the less compassion and understanding one exhibits when they operate in this way, the better.  This means that we only hear from ill-informed, mean people.  Therefore, I decided to write something about affirmative action, but make it less about academic and legal arguments (I’m happy to plug my thesis, if you’re interested in academic and legal arguments) and focus more on what well-intentioned folks need to know.

First, the timeline.  

While Africans were held in slavery in Europe and the western hemisphere in the 1400s, they were formally enslaved in the British Colonies in 1619.  Slavery and enslavement are different.  Enslavement is an institutionalizing of a practice.  This means that laws and policies were enacted to support the kidnapping, forced labor, and hereditary-nature of chattel slavery.  We can look at things like the Royal African Company where the British Crown created and supported a shipping company just to kidnap Africans.  Or the hundreds of laws such as the Barbados Slave Codes that created the rules.  So while we understand the atrocities of enslavement, we must also understand that it was illegal to be an African-descended person in the Colonies and be anything but enslaved.  There wasn’t a mechanism to legally earn money, get an education, and live freely.  While there are instances where individuals could live differently, these were anomalies, not practice.  And as we’ve seen in popular stories such as Solomon Northup and Cinque on the Amistad, even the anomalies were held to standards set by laws writ large.  

With this, one might say that slavery ended in 1865 with the passing of the 13th Amendment.  I don’t fully agree with that because the slave states had not re-entered the Union yet, but for argument’s sake, let’s say that slavery did end in 1865.  But when did enslavement – the legalized subjugation of African-descended people – end? 

In the case of education, the United States has never passed any laws that would allow African-descended people to fully access an education.  

I’ll let that sit for a minute because I’m sure many of you who are reading this are not sure about what you just read.

You might say that the United States has never passed a law granting anyone the right to an education.  But the United States did pass laws denying education to African-descended people.  Shouldn’t that mean they have to pass laws to undo that and ensure their descendants can access quality education?

So you might say, what about Brown v. The Board of Education that said separate but equal schools could not exist?  First, the Supreme Court decided that case in 1954.  Even if that case did all that we think it did, we’re only eighty years out from that decision but more than three hundred years from the practice.  It certainly needs more time to be effective.

And access to the same school doesn’t mean it’s a quality education.  Looking at Little Rock High School today, for example, it is more segregated today than it was then, with only White students accessing the coursework necessary to be admitted to, and funded, at universities.  And even with the passing of Brown v. The Board of Education II, some schools still haven’t gotten around to desegregating their schools.  It’s also quite arrogant to say that we need only put Black students in a room with White students, as though equality happens through osmosis and not behavior.  This is my issue with a lot of diversity initiatives but that’s for another day. 

So you might say no one can access higher education in this country.  Isn’t this a problem of wealth? Yes, AND African-descended people were legally denied the right to access wealth too, generational or otherwise.  While there are White people (and others) who live in poverty, the US never put laws in place to say to them that they could not access wealth (e.g. buy property, earn money, open a bank account).  That’s the difference between a hurdle or a door that just isn’t opened wide enough and a wall with a lava pit in front of it.  

This gets us to affirmative action.  We might say that there needs to be something put in place to make sure Black people, including those who are entering a country where there aren’t laws to support their livelihood, can access a quality education without bearing the burden of institutions that never served them.  That’s what affirmative action was supposed to be.  

“Supposed to” because when the first real test of affirmative action came with Bakke v UC Regents (1978) came around, we had already bastardized the intention of affirmative action.  When Kennedy signed the executive order in 1961, the provision stated employers shouldn’t discriminate based on race.  

Hold tight on that one.  First, a quick lesson on laws and executive orders.  The Legislative Branch passes laws but the Executive Branch puts in place the mechanism to enforce them.  It’s like one passes the rule while the other provides the consequence.  This means that signing laws are really just symbolic until the Executive Branch puts in a way to enforce it.  So, we might say that Kennedy was enacting a consequence for amendments and laws that were passed over a century earlier. Consider all of those laws that have passed without an enforcement mechanism.  They’re doing nothing.  That should also make you think twice about who the president is.

I’ll let all of that sit for a bit too.

Back to the order.  By 1978, the order had been moving around with little fidelity, but still moving around, and Bakke sued because he felt it gave too much of a leg up to Black people and therefore impacted his admissions.  This wasn’t true, of course.  And this argument will be used for the next forty-something years and still not be true.  The Supreme Court let affirmative action stand, but now for different reasons, partly due to the lie that Bakke put out in the world: that there is a leg up or some kind of advantage.  The reasons had nothing to do with righting a wrong for Black people; rather, it had to do with upskilling professionals who would work in their own communities and mitigating fears of crime coming from urban neighborhoods. These are benefits for White people because it removes the onus for them to be doctors and dentists in Black communities and their fears of Black violence. The Supreme Court said that it was okay to provide an advantage to Black people, as long as it also held an advantage, really of greater value, for White people. 

Here’s the thing with the Supreme Court: it interprets laws and we proceed based on their interpretations.  Meaning, if the Supreme Court says that the reason for “affirmative action” (now in quotes because it’s something different) is now related to the benefit felt by White people, we have a metric to determine if that part is effective.  Now that I’ve dipped my toe into legal theory, I might as well go all in.  Derrick Bell advances this theory of interest convergence: where laws are only passed if White communities benefit.  

That should frame the subsequent Supreme Court cases on affirmative action so I won’t go into them further.  

I do want to reposition your understanding, though, back to what we all thought affirmative action was supposed to fix. And if we can fix those harms without taking something from White communities.  I honestly don’t know.  As it has to do with education, everyone benefits when schools are better.  Colleges don’t have to set limits on who is admitted.  And viable, long-term, high-growth employment should depend on how much wealth someone has.  To me, none of this is that difficult.

So it begs the question: 

Why haven’t we put in place any mechanism to undo the harms done by centuries of enslavement?