Affirmative Action: Another Instance of Racial Workings in the United States (2000)

Epilogue No one can say that affirmative action has failed. Over the years and despite the controversy and widespread opposition, a substantial number of African Americans, most certainly including this author, and many other people of color owe their success at least in part to the functioning of affirmative action policies. Today, encouraged by a raft of court decisions and a few state laws hostile to any program deemed favorable to minorities (or, more critically, disadvantaging to White Americans), large numbers of businesses and government agencies have disbanded any pretense-and many of them were hardly more than that-of policies to increase diversity. Even where such programs are continuing, they have been quietly embedded into more general personnel policies. Regretfully, as with so many other reforms in U.S. society, though often the result of efforts by Black people, affirmative action has been of far more help to Whites, particularly for White women. All too many White women, having reached positions previously closed to them, have transformed themselves into guardians of the status quo, opposed to persons of color who lack traditional qualifications. An historic pattern is at work here. It is hard not to forget that for the first century of its existence, the 14th Amendment's equal protection clause, intended to secure the freedom and citizenship rights of those once enslaved, proved of far greater value to majority interests-corporations, railroads, and financial trusts-who used it to insulate their exploitation of the nation's land, labor, and resources against legislative efforts by states to rein in these ravishes. It proved of less value as a tool to protect the citizenship rights of African Americans or other victims of state-imposed disadvantage. Only with the modern day struggle for Black civil rights, conducted both in the courts and in the streets, was some enforceable meaning given to the Amendment's mandates regarding due process and the equal protection of the laws. Ironically, in recent affirmative action litigation, the interpretation adopted by the Supreme Court in the United States v. Carolene Products (1938) case to protect discrete and insular minorities against majority exploitation has been turned on its head. The result is that affirmative action now offers protection to the White majority from the modest efforts, by mainly White legislatures and policy leaders, to remedy some of the worse deprivations of generations of racial discrimination. That discrimination is continuing and growing more open and more blatant every day. Blacks can no longer evoke the antidiscrimination shield of affirmative action in the absence of smoking gun-type proof of intentional discrimination-at which point no close judicial scrutiny is needed. On the other hand, Whites challenging racial remedies are automatically entitled to close scrutiny by courts if a racial classification is used, even one designed to mitigate decades of overt discrimination. Thus, for equal protection purposes, Whites become the protected discrete and insular minority. What accounts for this cyclical pattern of advancement and loss in Black rights? The Derrick Bell Pre-Memorial Principle of Racial Loss and Gain offers one answer. It goes as follows: (1) Rule One-Society is always willing to sacrifice the rights of Black people in order to protect important economic or political interests of Whites. Consider, for example, the Framers' decision to protect slavery in the Constitution in order to ensure the ongoing support of slave-owning Whites. Consider also the Hayes-Tilden Compromise of 1876, which sacrificed the rights of Blacks in the South to forestall renewal of the Civil War, and the 1896 Plessy v. Ferguson separate-but-equal decision. These represent examples of Rule One in practice, less because they gave segregation the status of Constitutional law than because they sacrificed Black rights to gain White support for businessoriented economic policies. …