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"Commentary on the Kahlenberg-Marvit Article: Theodore M. Shaw"

January/February 2013 issue of Poverty & Race

Professor of Professional Practice, Columbia Law School,

Richard Kahlenberg’s and Moshe Marvit’s précis of their book left me with deeply conflicted feelings and reactions. It is provocative and thought-worthy in a manner that requires more time and greater reflection. Consequentially, my initial reactions may not survive further reflection; still, they are strong enough that they demand articulation, if only because I cannot get to where Kahlenberg and Marvit (K&M) are without jumping significant hurdles and reordering long-held principles and beliefs. My own views of class and race invite a “gut rush” acceptance of K&M’s thesis; yet I am left with a profound discomfort that defies my ability to organize adequately into thoughts.

The invocation of Dr. Martin Luther King’s last campaign, grounded in an understanding of historical and contemporary relationship between class and race, and of the need to adopt the politics of a movement for racial and economic justice, exerts a powerfully seductive force on progressives. Dr. King did not want to go to Memphis, but the strike by black sanitation workers appealed to his core beliefs in a way that coincided with his development as a leader that took him beyond the struggle against racial segregation and discrimination. By 1968, King could no longer stay silent about the Vietnam War and American militarism. Nor could he pursue his dream of a just society without addressing economic inequality, not only for black Americans whose struggle against racial discrimination had left them economically disadvantaged, but for all Americans. King was charting new territory, not because no American had challenged economic injustice before him, or even because no African-American leader had done so. King’s position as the pre-eminent and eloquent Civil Rights Movement spokesperson, as Nobel Peace Prize laureate, and as an international human rights advocate, uniquely positioned him to challenge the conscience of America, even if it was by no means certain that if he had lived his campaign against poverty would have succeeded. Indeed, it is the unfinished nature of his life’s work that invites 21st Century advocates and activists from varying ideological backgrounds to claim him. Right-wing conservatives embrace their version of Dr. King in support of a color-blind paradigm that would render illegal all conscious efforts to voluntarily address systemic vestiges of slavery and Jim Crow segregation. Progressives invoke King in their quest to awaken the Nation to the dangers and the injustice of the yawning chasm between “the 99%” and working- and middle-class Americans.

K&M correctly point to the complex role of labor unions during the era of the Civil Rights Movement. Labor unions were, in some instances, some of the biggest obstacles to equal employment opportunity. On the national level, however, labor became some of the staunchest allies of the Civil Rights Movement. Today, public employee unions represent a disproportionate number of black and brown people in the labor force, and unions in general have largely aligned their interests with those of people of color. This alignment is clearly visible in partisan politics at the state and local level, with the Republican Party seen as the party of white people and the wealthy, and the Democrats viewed as the party of “minorities” and labor. And of course, regardless of how much of 21st Century economic polarization is attributable to the weakened position of American labor unions, K&M correctly point to the assault on labor and the right to organize as an important battleground between conservatives and progressives. The right of workers to unionize is as old as the labor movement in America; late 19th and early 20th Century America far surpasses the bitter political debates that characterize our time. Nonetheless, contemporary assaults on the right to organize pose profound threats to the well-being of working- and middle-class people in the United States, and raise important civil and human rights issues.

My discomfort with K&M is not with their belief that the right of labor to organize should be recognized as a civil right. My discomfort stems from a sense that while K&M pay lip service to the fact that “more work surely needs to be done,” their sense that “the trajectory on race is generally pointed in the right direction” may give more ground to those who are arguing that in the age of Obama we have entered into a “post-racial” America. At a time when conscious efforts to address stubborn, intractable and systemic racial inequality for many African Americans and other people of color are under assault from the forces of “color-blindness,” we cannot let up. Kahlenberg for some time has promoted the notion of class-conscious affirmative action or diversity efforts as a response to the assault on race-conscious affirmative action and diversity efforts. While I suffer no illusions about the fact that many, if not most, progressives have abandoned and fled the terminology of “affirmative action,” or the facts about the direction of the Supreme Court as presently constituted, and while as a matter of principle I independently believe in the importance and the correctness of addressing class-based inequality, I refuse to surrender to the intellectual or legal equation of race-conscious affirmative action and racism. I support, as does Kahlenberg, class-based affirmative action, but I refuse to cede the ground he has ceded on issues of race. Nor do I believe that the tremendous progress to which he and Marvit rightly point is reason to think that we need to shift our focus to a greater degree on issues of economic inequality. We are presently facing an assault on diversity efforts in admission to selective institutions of higher education, an avenue that has desegregated leadership and governance in America for the last 35 years. We face an assault on the constitutionality of the Voting Rights Act. The Fair Housing Act is under assault, and indeed the underpinnings of Title VII of the Civil Rights Act of 1964, which K&M venerate so dearly, are in the crosshairs of radical conservatives whose race project since the days of the Warren Court has been to undo its jurisprudence.

It is this reality that leads me to my core concern with K&M’s proposal. Civil rights legislation has been successful, and many Americans have come to an understanding of its importance they once did not have. Nonetheless, since the enactment of Title VII, which K&M propose to amend, and of The Voting Rights Act of 1965, and of the Fair Housing Act of 1968 (which shares the standard known as “the effects test” with Title VII, despised by radical conservatives), these statutes have never been completely safe. They have been under assault by the progenitors of the radical right-wing race project. They have been opened for amendment only when necessity demanded it and when the politics of the moment allowed or demanded it. Opening Title VII for amendment two years after the Supreme Court’s decision in Ricci, with a House of Representatives in control of radical conservatives, is a risky proposition at best.

Moreover, the amendment to Title VII proposed by K&M would change the nature of a long-existing statute. Even granting their “religion” retort to the “immutable characteristics” argument some might pose to K&M, there is another distinction their proposal would create. Whether it is race, gender, national origin or religion, these are all aspects of who and what we are. (Yes, arguably one can change religion, but I doubt that takes religion out of the “who or what we are” category.) Organizing is “what we do.” In other words, to borrow terminology from a Supreme Court decision, the protected class to be added to Title VII is arguably “analytically distinct” from those already in the statute. That does not mean the classification could not be protected in independent

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