Affirming the AffirmativeBy Jack Bass
Vol. 17, No. 1, 1995, pp. 1-3
In the middle of the current debate over affirmative action, a moment taken to revisit recent history turns out to be surprising, ironic, and instructive. Readers with long memories will recall that the concept of affirmative action emerged directly from the judicial crucible of civil rights, the old Fifth Circuit Court of Appeals, head- quartered in New Orleans. Before it was divided in 1980, the Fifth Circuit's jurisdiction extended from Savannah to El Paso and covered six states of the Confederacy, including the Alabama and Mississippi that George Wallace and Ross Barnett governed.
From the bare bones of the Supreme Court's Brown v. Board of Education decision, a handful of Southern judges -- most of them Eisenhower Republicans -- fleshed out a broad mandate for racial justice. Their court became the federal judiciary's equivalent of the civil rights movement.
The scholar of the Fifth Circuit, Judge John Minor Wisdom, hammered out the Constitutional rationale for affirmative action in a 1967 school desegregation case, U.S. v. Jefferson. "The Constitution is both color-blind and color conscious," Wisdom wrote. "To avoid conflict
Page 2with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate government purpose."
Judge Frank M. Johnson, another of those legendary Southern federal judges who shaped civil rights law, declared in a 1979 address to graduating law students at Boston University, "If the life of the law has been experience, then the law should be realistic enough to treat certain issues as special: as racism is special in American history. A judiciary that cannot declare that is of little value."
To argue that affirmative action is somehow a perversion of civil rights laws, as do two self-described "staunch conservative" San Francisco-area academics who are leading a movement to place the issue of affirmative action on the ballot next year in California, amounts to historical nonsense. It would be analogous to making a scientific argument that changes in the atmosphere cause California earthquakes.
The objective of Glynn Custred, anthropologist, and Thomas Wood, philosopher, is to "restore true color-blind fairness in the United States." The problem is that the United States has no history of true color-blind fairness.
In the Dred Scott case in 1857, only three years before the election of Abraham Lincoln, Chief Justice Roger Taney characterized even free blacks "as being of an inferior order, and altogether unfit to associate with he white race . . . so far inferior, that they had no rights which the white man was bound to respect."
The concept that the Constitution is "color-blind," an argument heard often these days from conservatives attacking affirmative action, comes from Justice John Marshall Harlan's dissent in Plessy v. Ferguson. That 1896 case established the "separate but equal" doctrine, which provided the legal underpinning for government-imposed apartheid in the American South for the next six decades. The lone dissenter in the Plessy case, Justice Harlan won no support for his "color-blind" argument from his brethren on the Supreme Court, who represented the prevailing national attitude. So much for "restoring" color-blind fairness.
The Supreme Court struck clown "separate but equal" in 1954 with Brown, but a year later left implementation to the lower courts with little direction other than to proceed "with all deliberate speed." How to reconstruct an entire social order became a problem for judges in the South to solve. That the courts successfully prevailed amounts to
Page 3no less than Judicial Reconstruction, a more lasting achievement than the Congressional Reconstruction that followed the Civil War.
Judge Wisdom provided in Jefferson more than the intellectual rationale for a Constitutional basis to "undo the effects of past discrimination." He also recognized "the fact that Negroes collectively are harmed" by segregation.
"The unmalleable fact transcending in importance the harm to individual Negro children," Wisdom asserted, "is that the separate school system was an integral element in the Southern States' general program to restrict Negroes as a class from participation in the life of the community, the affairs of the State, and the main-stream of American life: Negroes must keep their place."
At the same time that Judge Wisdom was writing this 1967 opinion, Martin Luther King, Jr., was moving into Chicago and exposing racism in the North. It's easy to forget that little more than two decades ago neo-Nazis demonstrated in suburbs of Chicago and the Ku Klux Klan held rallies in Boston.
In the current political battle over affirmative action, its defenders need to strengthen their case by engaging in straight talk. Because he claims the "bully pulpit" of the presidency, Bill Clinton clearly should be the logical leader.
President Clinton could remind the public that affirmative action developed from a recognition by the courts of the need to overcome the effects of past discrimination, that this remedy is necessary to establish a truly just society. The statistics are out there to demonstrate both that affirmative action has been successful (for example, the development of an expanded black middle class and the transformation of women in the work force) and that the job clearly isn't over.
At the same time, it is necessary to acknowledge that affirmative action does involve sacrifice and pain -- from beneficiaries who may feel stigmatized as well as white men who feel victimized, that its enforcement requires careful monitoring to prevent or eliminate abuses, and that it is unrealistic to expect to undo in a generation the effects of centuries of past discrimination.
Clinton also could create a Presidential Commission on National Unity, a measure that has received White House consideration. Such a Commission could draw attention to successful programs, including that of the military, which began to integrate well before the court mandate and which has developed an extensive body of research and training to deal with issues related to race.
The President could ex-plain that affirmative action did not emerge as a Democratic political initiative, but as a legal concept developed primarily by a group of widely honored Re-publican judges -- that its history is bipartisan.
The American legacy of racial discrimination remains to be overcome. To defend affirmative action, presidential leadership needs to establish the moral high ground, explain the public interest in working to achieve a just society and make the case for persistence and patience.
Jack Bass is professor of journalism at the University of Mississippi and author of two books about Southern judges and civil rights: Unlikely Heroes and Taming the Storm, a biography of Judge Frank M. Johnson, Jr.