When Is Affirmative Action Fair?: On Grievous Harms and Public Remedies

Ira Katznelson When Is Affirmative Action Fair? On Grievous Harms and Public Remedies SPEAKING AT HOWARD UNIVERSITY’S JUNE 1965 COMMENCEMENT, President Lyndon Johnson opened a national conversation on race, fair­ ness, and affirmative action.' Nearly a year after Congress had passed the landmark Civil Rights Act of 1964, and shortly before his success­ ful campaign on behalf of a Voting Rights Act that brought the era of Jim Crow to a close, the president observed that something more, tran­ scending equal treatment, was needed: You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders as you please. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “you are free to compete with all the others,” and still justly believe that you have been completely fair. Thus is it not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates (cited in Katznelson, 2005:173-181). social research Vol 73 : No 2 : Summer 2006 541 Declaring this to be “the next and more profound stage of the battle for civil rights,” the president shifted grounds and goals. “We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.” This clarion speech, “To Fulfill These Rights,” featured two main puzzles. It asked, first, why the gap between blacks and whites actu­ ally had grown in the two decades after the end of the Second World War. Johnson’s account began by observing that “the great majority of Negro Americans . . . still, as we m eet here tonight, are another nation. Despite the court orders and the laws, despite legislative victo­ ries and speeches, for them the walls are rising and the gulf is widen­ ing.” Citing information provided by Daniel Patrick Moynihan, one of the speech’s authors, Johnson chronicled “the facts of this American failure”: Thirty-five years ago the rate of unemployment for Negroes and whites was about the same. Tonight, the Negro rate is twice as high. In 1948 the 8 percent unemployment rate for Negro teen­ age boys was actually less than that of whites. By last year, that rate had grown to 23 percent, as against 13 percent for whites employed. Between 1949 and 1959 the income of Negro men relative to white men declined in every section o f this country. From 1952 to 1963 the median income of Negro families compared to white actually dropped from 57 percent to 53 percent___ Since 1947 the number of white families living in poverty has decreased 27 percent while the number o f poorer nonwhite families decreased by only 3 percent. How, Johnson inquired, could white and black income and wealth have grown more, not less, distinct in the postwar golden age? 542 social research What had accounted for these increasing disparities despite nearly two decades of unbroken and unprecedented abundance? “We are not sure,” he confessed, “why this is.” Second, he asked what should be done in light of this record. In a post-civil rights period, with the legal playing field leveled, with color expunged as an officially sanctioned badge of deprivation, how might the unequal powers of race be compensated even after the legislative work of the civil rights revolution had been accomplished? These questions still haunt. Today, the once contentious color­ blind standard of nondiscrimination is broadly accepted. So, too, are efforts at outreach and recruitment aimed at increasing the number of applicants for scarce positions in schools and firms. Where agree­ ment stops, however, is where compensatory discrimination starts. “The controversy over affirmative action,” Randall Kennedy rightly noted in mid-1980s, “constitutes the most salient current battlefront in the ongoing struggle over the status of the Negro in American life” (Kennedy, 1986: 1327). Nearly two decades later, as American troops were being dispatched to Iraq, Robert Bartley observed in...