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"Race Still Matters,"

by Giradieu A. Spann May/June 2014 issue of Poverty & Race

The Supreme Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action shows that Professor Sheryll Cashin is nothing if not prescient. In upholding the constitutionality of a Michigan voter initiative that amended the state Constitution to ban affirmative action, the Schuette decision validated Cashin’s observation that both the public and the Court are growing tired of what have come to be known as racial preferences. Accordingly, Cashin’s new book, Place, Not Race: A New Vision of Opportunity in America (Beacon 2014), argues that those who are committed to diversity and racial justice would ultimately have more success if they abandoned their racial affirmative action agenda, and instead formed broader coalitions with progressive whites to support affirmative action programs based on socioeconomic disadvantage rather than the increasingly divisive issue of race. Everything that Cashin says about the need for targeted efforts to benefit socioeconomic groups seems correct, both in terms of promoting justice and increasing diversity in our educational institutions. However, I do not view socioeconomic affirmative action and racial affirmative action as mutually exclusive. Rather, I view them as distinct strategies for addressing distinct forms of pervasive discrimination. I am reluctant to substitute race-neutral for race-conscious remedial efforts, because I fear that the discriminatory forces that have historically been at play in U.S. culture will continue to affect race-neutral forms of socioeconomic affirmative action in a way that causes them to benefit whites more than racial minorities. I also believe that race remains so salient a cultural category that the only way we can hope to compensate for the various forms of racial “tilt” that continue to exist in contemporary culture is to confront the problem of race head-on. Contrary to the prevailing rhetoric, I do not view affirmative action as a system of racial preferences. Rather, I view affirmative action as having the same meaning it had when the term was originally coined. It is a strategy for consciously combating the subtle but ubiquitous forms of racial discrimination that, through inertia, will continue to control the allocation of societal resources unless consciously neutralized. By ceding control over the concept of affirmative action to those who would perpetuate the existing maldistribution of resources, I fear that we will slip into the trap of believing that our current forms of post-racial discrimination are somehow constitutionally and morally permissible.

As Professor Cashin argues, the goal of finding remedies for socioeconomic discrimination is very important. However, that goal is neither a substitute for, nor mutually exclusive with, the goal of finding remedies for continuing racial discrimination. As the racially correlated allocation of significant societal benefits and burdens attests, racial discrimination continues to exist in the United States. This is true even for racial minorities who are lucky enough to have some degree of social and economic advantage. In fact, remedial strategies that encompass discrimination against both advantaged and disadvantaged minorities help rebut the stereotypical view of minorities as being unaccomplished drains on society, as well as the view that successful minorities are no longer victims of racial discrimination. Moreover, remedial programs that include minorities who do not come from disadvantaged backgrounds facilitate the important contributions to society that can be made by such people.Those who favor socioeconomic affirmative action because it is race-neutral seem to be rejecting Justice Blackmun’s important insight in Regents of the University of California v. Bakke that, “In order to get beyond racism, we must first take account of race. There is no other way.”

The problem with race-neutral remedies is that they will permit continued operation of the cultural forces that have consistently produced racial discrimination in the past. Although minorities suffer disproportionately high rates of social and economic disadvantage, socioeconomic affirmative action will end up benefitting more whites than minorities, because in absolute terms, more whites than minorities are disadvantaged. But minorities may end up being underrepresented in percentage terms as well. Our long-standing cultural inclination to discriminate against racial minorities seems likely to influence socioeconomic affirmative action in the same way that it influences the distribution of other societal benefits—ranging from employment to health care to freedom from incarceration. Existing patterns of structural discrimination are so entrenched that they are likely to re-emerge as disadvantaged whites and minorities compete for the limited resources that socioeconomic affirmative action makes available. Moreover, as Michelle Alexander describes in The New Jim Crow, the economic elites who benefit from the current maldistribution of wealth in the United States have an interest in impeding the formation of cross-racial coalitions among disadvantaged whites and racial minorities in order to ward off coordinated challenges to their privileged status. It is in their interest to keep disadvantaged whites and minorities fighting each other for limited resources, rather than form the sorts of cross-racial coalitions that Cashin seeks to promote. I suspect that race-coded, dog-whistle politics will be as effective an agent for racial divisiveness in the competition for socioeconomic affirmative action benefits as it has been in the competition for other societal benefits. Accordingly, there is a danger that the supposed race neutrality of socioeconomic affirmative action will simply end up masking subtle forms of embedded racial discrimination.

I agree with Professor Cashin’s view that cross-racial coalitions are desirable. However, I do not think that healthy cross-racial coalitions are likely to result from suppressing the salience of race. The racial reconciliation and cross-racial coalitions that formed during the Civil Rights Movement of the 1950s and 1960s were produced by intense race-consciousness, not by a commitment to colorblindness. I think the reason racial attitudes have changed since then is because the Supreme Court has made it fashionable to resent racial minorities again. If the Court changed its constitutional rhetoric to be as sensitive to the problem of racial subordination as it was during the civil rights era, I think the culture might change its views about race in a way that once again emphasized racial justice over racial resentment. If you think I am naïve, please remember that the racial animosity preceding the Civil Rights Movement was more intense than the racial animosity that exists now. If we could move from that old animosity to the old Civil Rights Movement, we should also be able to move from the current animosity to a new Civil Rights Movement. Indeed, by acquiescing in use of the term “affirmative action,” and the characterization of affirmative action as consisting of “racial preferences,” we seem to be relinquishing the moral high ground to the proponents of discrimination, who would like to make effective remedies seem illegitimate. What we are talking about should not be called affirmative action, but rather should be called an effort to remedy ongoing embedded racial discrimination. We should try to control the meaning of the concept so that it is once again viewed as legitimate, just, and a moral imperative.

Lyndon Johnson originally viewed “affirmative action” as a term that entailed conscious efforts to combat ongoing racial discrimination. The term was eventually commandeered as a divisive racial symbol by those who wished to exploit a tacit but widely-shared sense of white entitlement to societal resources. The Supreme Court’s anti-affirmative action decisions have also deprived Johnson’s affirmative action of the moral clarity it initially possessed, by characterizing efforts to remedy subtle but deeply embedded forms of “societal discrimination” as illegitimate and unconstitutional efforts to grant racial preferences to minorities. Different decisions and different rhetoric by the Supreme Court might have precluded the current affirmative action backlash. And perhaps different decisions by a future Supreme Court with greater racial sensitivity would restore legitimacy and moral clarity to race-conscious discrimination remedies.

I agree with Professor Cashin that—in the current political climate, with the current Supreme Court—race-conscious efforts to end discrimination are not likely to meet with much success. That is unfortunate. But by continuing to press for them, perhaps we can at least remind people that the ongoing problem of racial discrimination is real, and that those who favor socioeconomic affirmative action are offering them a moderate rather than a radical remedy for that discrimination.

Giradieu A. Spann is Prof. of Law at the Georgetown Univ. Law Center.

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