Monday, September 02, 2013

Ending the Need for Affirmative Action vs. Arguing That It's Unconstitutional

It's impossible to read something like this without wondering what the author is thinking.
Martin Luther King’s Dream Unconstitutional?

Fifty years ago today, Martin Luther King, Jr., spoke these immortal words: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” He would have been mystified, one imagines, by the question presented in Schuette v. Coalition to Defend Affirmative Action: “Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions.”
But for the title of his post, I might agree - King may well have been mystified by why, fifty years after his speech, the Supreme Court would be asking that question. In the context of his time, King would certainly have seen such an effort by a state as being intended to slow integration and stymie minority enrollment in colleges. But you can't look past the title....

Is there something in the history of the civil rights movement, or in King's speeches, that would suggest that King believed that affirmative action was or should be unconstitutional? Does the author of the comment, law professor Nick Rosenkranz, believe that King would have been unaware of the history of "equality" enforced after Plessy vs. Ferguson, through the Jim Crow era? Does he believe that King couldn't recognize that the sudden alarm about affirmative action and the need for the constitution to be "color blind" came largely from the same politicians who had absolutely no problem with state-imposed, state-enforced segregation? Unless Rosenkranz sincerely believes that King's dream has been fully realized, why would Rosenkranz believe that King would support a state-based initiative that he would likely see as intended to keep its vestiges in place as well as to prevent future corrective action if race relations worsen?

Although it would be more than a bit counter-factual, if I were to assume that Rosenkranz believes that we now live in a society in which King's dream has been fully realized, I might be able to construe the question a bit more charitably. After all, it is possible that Rosenkranz sincerely believes that discrimination is a thing of the past in American society. His question might be interpreted as, "Once discrimination has been extirpated from society, is it unconstitutional for a state to prohibit remedies to discrimination that are permitted by the federal constitution". But under this interpretation Rosenkranz would be projecting onto King the naive belief that it should be up to state governments to determine whether or not discrimination still exists, while in fact King was acutely aware of how many state legislators and governors were embraced segregationist policies which they were happy to call "equality". He would also be projecting onto King the quaint notion that once discrimination is eliminated from a society it can never return in any form.

Rosenkranz's underlying argument has a circularity, similar to that of Chief Justice Roberts' simplistic statement, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race". It's reasonable to believe that King would agree with the goal of eliminating discrimination, but I am skeptical that he would hop on Roberts' bandwagon by declaring that the place to start is through eliminating corrective measures that the state can apply in response to discrimination.

I expect that if Rosenkranz were to have, in earnest, presented this argument to King, he would have received a patient lecture about how measures to correct discrimination will inevitably have an impact on people who did not directly participate in the discrimination, including some people who helped bring about its end, but that it's not possible to impose remedies for past discrimination without doing so. That the minor impact of a well-managed affirmative action program on those who are not beneficiaries of the program is outweighed by the significant need to correct the historic wrong and to integrate society. And that even if his dream were to become reality, you can never say "It will never happen again" and a government should not tie its hands - after all, once King's dream is fully realized even if an affirmative action program remains nominally in place it would be dormant. King might explain that even in the context of his realized dream, there would be cause for to be skeptical of the motives of a faction intent upon preventing the use of similar remedies in the future, and that cause for skepticism would be greater in relation to a faction that was working hard to end corrective measures prior to the realization of his dream.

Ultimately, I expect King would explain that there is a significant difference between asking, "How can we do this better," or "What alternative approaches might we take that could be even more effective, or strike a better balance between competing interests," and "How do we stop this in its tracks". Would Rosenkranz grasp the difference?


  1. It's impossible for me to look at any kind of "race based" affirmative action program and not think that there is a more efficient and less divisive way to meet the need that the program is supposed to address. CWD

    1. Affirmative action describes the original concept, that the government would take action consistent with the goal of societal integration. The term has come to mean something much more narrow, in no small part because other efforts proved ineffective or were held unconstitutional (e.g., quotas). Affirmative action as employed is a blunt tool, and as a result it simultaneously overprotects and underprotects certain persons who fall within the groups it's intended to benefit. It's easy to find fault but, as with many other aspects of public policy, difficult to come up with politically viable alternatives.

      The alternatives that occur to me, that would be most likely to help end multi-generational poverty and disadvantage, would be both expensive and considerably more intrusive. That's not to say that some alternatives shouldn't be tried, but it is to say that in our present political environment - an environment I expect to continue indefinitely - the solutions that occur to me won't be tried.


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