In light of the internal document that was recently released from the Justice Department on affirmative action, we offer a guest post for some background on the topic.

The Trojan Horse Called “Diversity”[1]

by Barbara Phillips

The Civil Rights Movement advanced victories for racial justice in the courts and hearts-and-minds of the general public when it confronted the status quo by advocating for constitutional rights, democracy, and the moral imperative of human decency.  The public discourse was about racial justice, segregation, White Supremacy, and fulfilling the promise of the Civil War Amendments to the Constitution.  But, as advocacy retreated from the streets and moved into the courtroom, the work of reaching out to the American public and advancing a progressive vision of a just society diminished.  In retrospect, we can see that the dominant frame for discussions of racial justice in the public arena became that crafted by Right Wing Republicans – both on and off the judicial bench.  Civil rights lawyers had to accommodate that shifting frame in the federal courts; the main institutions of the Civil Rights Movement then unnecessarily accommodated that shifting frame in the public arena to the detriment of advancing racial justice.

The framing that arose from the Right Wing relied upon the concept of “diversity,” a curious word appearing with increasing frequency during the late 1970s when popular opinion and federal courts were signaling hostility toward equality claims of African Americans.  Far more palatable to white America than grappling with the present realities of White Supremacy, White Privilege, institutional racism, the continuing effects of past discrimination, present racial discrimination, and racial subordination, it is no wonder that the term “diversity” received such a warm welcome.  Unfortunately, experience has taught us that the term – with no ties to principles of equality and justice –  is an obstacle to principled, transformative, progressive approaches to racial justice and has shown itself to actually be in service of White Supremacy.  The “diversity” concept is criticized in this essay because this usefulness in displacing and defeating constitutional claims of racial equality and justice.

Once the public images of fire hoses and dogs being set upon civil rights demonstrators became a thing of the past, white America – with a big push from the Southern Strategy of the Republican Party using blatant and covert racist appeals to boost the party’s political success – became weary of talk of the plight of Black folk.  In fact, white America came to see itself as being the object of “Reverse Discrimination”. By 1995, Republican Senate Majority Leader Robert J. Dole was referring to “displaced” white males losing out in job competition due to affirmative action benefiting blacks.  With an implicit message of innocence and victimization, Dole revealed his uncertainty that “they” should “have to pay” for the legacy of slavery and discrimination.  He states, “We did discriminate.  We did suppress people.  It was wrong.  Slavery was wrong.  But should future generations have to pay for that?  Some would say yes.  I think it’s a tough question.” [Meet the Press,NBC television broadcast, Feb. 5, 1995]

Mainstream civil rights advocacy embraced the framing of diversity and failed to pursue public education campaigns advocating for deeper understanding of  racism embedded in institutions, present effects of past discrimination, and present private and state discrimination permeating American society.  Thus, the illusion of a “level playing field” and present-day “color-blind society” occupied the imagination and crippled the advancement of a more just society both in the courtroom and in the public square.

While “diversity” was first mentioned in the Bakke case of the 1970s, it was in the 1989 case of City of Richmond v. J.A. Croson that the Supreme Court definitively commenced the approach to racial justice that led us to the ascendancy of “diversity.”  In Croson, a majority of the Court invoked, for the first time, strict scrutiny to determine the constitutionality of an affirmative action program.  Perhaps astonishing to all except civil rights lawyers, the meaning of racial equality in this Second Reconstruction had been left unresolved in the previous fifteen years by the ten major Supreme Court decisions concerning the use of racial classification to remedy the effects of discrimination.

Croson arose from a Fourteenth Amendment challenge to the City of Richmond’s plan that required non-minority prime contractors awarded city projects to subcontract at least thirty percent of the dollar amount of the project to one or more minority business enterprises (MBE) unless the requirement was waived.  In subjecting the plaintiff’s Equal Protection claims to strict scrutiny and demanding a stringent decontextualized factual predicate to survive that scrutiny, the Court’s approach turned on its head the Fourteenth Amendment’s vision of equality.  The Court’s shift to require strict scrutiny review of all race classification marked a significant change in its approach to racial discrimination case.  As a consequence of this decontextualized approach, state and local governments could implement remedial plans for past discrimination only if they made extraordinary confessions of significantly detailed and robust wrongdoing.  This was hardly an inducement to government to address the problems.

In 1993, the Supreme Court became clearly complicit in returning African-Americans to the place we occupied socially, politically and legally in the 19^th century – just as the federal judiciary at the turn of the century returned us to the vestiges of slavery. The inflammatory rhetoric of Justice O’Connor in Shaw v. Reno (1993), an Equal Protection challenge by white plaintiffs to race-conscious redistricting by the North Carolina legislature, revealed the stridency of the Court’s hostility toward substantive equality and race-conscious remedial measures.  In Shaw, the plaintiffs challenged the constitutionality of a congressional redistricting plan which created a majority-African American district resulting in , the election to Congress of an African American for the first time since Reconstruction.  The redistricting efforts of the state legislature were characterized by Justice O’Connor as “bearing an uncomfortable resemblance to political apartheid” and a “deliberate segregation of voters into separate districts on the basis of race [in violation of constitutionally protected] right to participate in a ‘color-blind’ electoral process.”  She was untroubled by the political apartheid of African Americans being deprived of the opportunity to elect candidates of their choice since the demise of the first Reconstruction.  The Court refused to characterize as compelling the State’s interest in remedying the effects of past discrimination despite overwhelming proof of racially polarized voting.  Attributing values of “neutrality” and “primacy” to redistricting principles of compactness, contiguity and communities of interest while disregarding the context of racially polarized voting, the Court ignored the evidence that these so-called “neutral” principles in the context of racially polarized voting resulted in 100% white Congressional delegations since the First Reconstruction.

The ultimate triumph of this radical, decontextualized vision of equality came in the 1995 Supreme Court decision applying the Fifth Amendment in Adarand Constructors, Inc. v. Pena.  Writing for the Court, Justice O’Connor overruled Metro Broadcasting, Inc. v. FCC, decided only five years before, and held that all racial classifications, including those in remedial federal legislation, must withstand strict scrutiny.  Under this new standard, entities can remedy racial injustice only after meeting the onerous burden of confessing discriminatory acts of the magnitude, severity, vileness, pervasiveness, and specificity required by the Court’s standard applied to remedial race-conscious measures, together with the requisite identification of perpetrator.

Summoning the rhetorical weapon of a “color-blind” Constitution to discredit efforts to acknowledge and to remedy the continuing effects of White Supremacy, it is possible to employ the concept of “diversity” while maintaining the essence of the status quo.  In the context of higher education, claims for racial justice under the Civil War Amendments are rejected while the Supreme Court elevates the First Amendment interests of institutions of higher learning.  The institution’s interest in having a “diverse” student body because it advances the educational goals of the institution is recognized as appropriate while claims of a constitutional imperative to remedy racial discrimination and subordination are disfavored.  Thus, instead of contributing to the transformation of society, “diversity” serves as an insidious diversion.  It becomes a convenient concept that displaces recognition of the legitimate constitutional and statutory claims of blacks to remedy the myriad ways in which the status quo perpetuates their subordination.  “Diversity” facilitates the turning away from the difficult task of fundamental change and institutional transformation.  Confronting these challenges is required if the legacy of 19^th century Plessy v. Ferguson is to be dismantled. 

No federal court understood this better than the Fifth Circuit Court of Appeals, sitting in New Orleans and filled with judges from the South, during the early days of the Civil Rights Movement.  The judges of the Fifth Circuit were determined to make the constitution a reality in the lives of Black citizens living in the Old Confederacy.  They understood the Constitution to compel a dismantling of White Supremacy and achievement of racial justice predicated upon the Thirteenth Amendment’s prohibition against badges and incidents of slavery as well as the equality values of the Fourteenth Amendment.  Judge John Minor Wisdom, in Williams v. City of New Orleans (19  ) articulated a transformative vision of the Constitution, acknowledging the appropriate race-consciousness of the Civil War Amendments:

The Constitution is race-conscious.  Under the Thirteenth Amendment the Constitution contemplates and the Equal Protection Clause of the Fourteenth Amendment does not prohibit, race-conscious, class-based, prospective relief in a unit of state government in the appropriate case.  The appropriate case is one in which discrimination in a state governmental unit is system-wide, institutional, and the product of a long history of discrimination against blacks as a group to continue what amounts to a caste system.

Judge Wisdom made the case for understanding the constitutional requirement of “narrowly tailored” relief to incorporate fundamental change in the system or institution.  He noted that the Supreme Court’s approach to remedy in Brown v. Board of Education focused on the effects of longstanding discrimination against blacks as a group, rather than on providing relief to the “identifiable” individual.  Judge Wisdom observed that the Court’s admonition that remedial measures be taken “with all deliberate speed” was grounded in recognition that the Constitution requires as appropriate relief the restructuring of an institution because the remedy must be as group oriented as the harm.  Judge Wisdom opened the constitutional door to substantive equality and remedying group subordination by understanding that “narrowly tailored” relief requires fundamental change, as opposed to the begrudging, minimalist interpretations of the term that justify the least alteration of the status quo.

The reconstruction of society is the promise of the Civil War Amendments.  However, the Supreme Court and the federal judiciary were participants in the demise of the First Reconstruction commencing with the Court’s 1883 decision in the Civil Rights Cases, holding that Congress lacked the power under the Fourteenth Amendment to outlaw discrimination in public accommodations.  The current calls for recognition of a “color blind” Constitution and the Supreme Court’s hostility toward claims seeking the dismantling of White Supremacy are couched in language much too reminiscent of  Plessy v. Ferguson the 19^th century decision in which language cruelly speaking of citizenship relegated African Americans to generations of White Supremacy:

There must be some state in the progress of [the black citizen’s political enfranchisement] when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected.

One of the darkest periods in this nation’s history followed this exhortation to color-blindness.  Indeed, that exhortation controlled public policy with respect to issue of racial justice and equality until the 1954 Supreme Court decision in Brown v. Board of Education. The Supreme Court invoked that same rhetoric fewer than sixty years after Brown to commence the demise of the Second Reconstruction which had been ushered in by the Civil Rights Act of 1964 and the Voting Rights Act of 1965.  The Supreme Court together with the Republican Party would return African-Americans to the role – to their place – in the 19^th Century.

Since the Supreme Court would have African-Americans return to 19^th century America, we might look to those who brought us the Second Reconstruction for inspiration.  Those African Americans held a profound belief in their own humanity.  They imagined a world of justice.  They believed in the necessity of their own determination of a course of action.  I advocate emulation of their vision, boldness and critical assessment of reality.

The Second Reconstruction emerged from African Americans’ engaging in community organizing, self-help, direct action and challenging the legal order. Well know examples of the convergence of these strategies include the modern civil rights legislation which the Supreme Court is now gutting.  Less well known, but perhaps more instructive to today’s activists is the relentless, principled battle fought by the Mississippi Freedom Democratic Party (MFDP).  Most people know that in 1964, the MFDP appeared at the Democratic National Convention in Atlantic City and claimed the right to represent the state Democratic Party.  Lyndon Johnson sent Hubert Humphrey widely seen as a civil rights advocate to offer the MFDP two at-large seats.  To add insult to injury, one seat was to be for a specific white person and the other a specific Black person, while the seated Mississippi all-white delegation would retain their credentials.  In what might seem like a counter-intuitive move for those marginally enfranchised, the MFDP rejected that offer with the famous words of Mrs. Fannie Lou Hamer, “We didn’t come all this way for no two seats when all of us is tired.”  Mrs. Hamer was ridiculed by more “sophisticated” Black and liberal white Democratic Party operatives for not accepting the “compromise.” The MFDP went back to Mississippi that August.  But, the story really doesn’t end there.

On September 17, 1965, three Black women from Mississippi were invited to the floor of the U.S. House of Representatives.  Mrs. Hamer, Mrs. Annie Devine, and Mrs. Victoria Gray – leaders of the MFDP – were invited to witness the debate on the floor of the House of the Report of the Subcommittee on Elections of the House Administrative Committee.  This report was the result of their returning to Mississippi to organize after Atlantic City.  They came up with new strategies for community action and new strategies for using the law.  They organized a bold challenge to unseat the entire Mississippi Congressional delegation.  The challenge attempted to use the rules of Congress to establish the right of blacks to participate fully and effectively in the political process.  Senator James Eastland of Mrs. Hamer’s own Sunflower County led the attack on the floor of the Senate against the MFDP and labeled the challenge a communist plot.

Because the Voting Rights Act became law in August 1965, the Committee Report insisted that its passage rendered moot as to future elections the issues of the Mississippi challenge and rejected the effort to unseat the representatives.  The MFDP went back to Mississippi, but not to accept defeat.  In October 1965, one month after the House rejection of the challenge, the MFDP focused on the second Congressional district in Mississippi the Delta filing a lawsuit challenging the constitutionality of the district lines.  The Supreme Court ruled against them. 

But the MFDP continued organizing and bringing legal challenges to racially gerrymandered districts.  Vindication came in the Supreme Court in 1977 with the successful challenge to the racially gerrymandered state legislative districts.  Vindication began in the real world in 1979. Henry J. Kirksey, an original plaintiff in the case since 1965 and a driving force in Mississippi as a legal strategist, districting plan drafter, and expert witness in voting rights cases, became the first black elected to the Mississippi Senate since Reconstruction along with 16 other blacks elected to the state legislature.  The work continued, the racial gerrymandering of congressional districts successfully challenged, until the first black Congressman from Mississippi since Reconstruction, Bennie Thompson, was sworn in during January 1987.  By 1993, there were 3704 black elected officials in the southern states due to enforcement of the Voting Rights Act of 1965 and community organizing.

The lesson relevant to today is that we come together as the MFDP did in the past to be conscious of the unrealized aspiration for a just society, to be creative about strategy, bold about legal theory, and courageous in using the legal system and every lever for change at our disposal to bring about a new world.  Despite the current Extreme Right Wing ideology dominating the Supreme Court and other federal courts, it remains imperative that advocacy continues to challenge that ideology in the federal courts together with the venues of Congress, state legislatures, county and city governments, special election districts such as school boards and other regulatory entities, as well as at the community level.  The MFDP did not concede; nor can we.

A concrete example of creative strategy is the California Voting Rights Act, signed into law in 2002. The CVRA was conceived and drafted by Joaquin G. Avila.  One of the leading voting rights litigators in the country, he began developing this state legislation in the late 1980s at a time when others were celebrating a Supreme Court decision interpreting the newly amended and extended federal Voting Rights Act and contemplating a bright new future of eradicating discriminatory voting practices through enforcement of this federal law. He was prescient in his analysis of that same Supreme Court decision as signaling a closing of opportunity in federal court to vindicate minority voting rights. The CVRA evolved out of a visionary, decades-long strategy to address basic equity issues of political access, educational opportunity and economic development on behalf of the Mexican American community; it was not solely a response to this particular court decision. The CVRA resulted from an entrepreneurial, innovative approach to create both opportunities for effective exercise of the franchise as fully participatory citizens and opportunities for the development of leadership and institutions within the Mexican American community.  Today, as the Supreme Court has destroyed the most effective protections of the federal Voting Rights Act and placed onerous burdens in vindicating voting rights, the CVRA provides a realistic opportunity to not only Mexican Americans but all voters injured by racially polarized voting in California.

[1] I discussed preliminary thoughts about “diversity” at the Conference on the Civil Rights Act of 1964: A Thirty-Year Perspective which became an essay in LEGACIES IN CIVIL RIGHTS: THE CIVIL RIGHTS ACT OF 1964 IN PERSPECTIVE (Bernard Grofman, ed., 1998) and further developed the analysis in The Gift of Hopwood: Diversity and the Fife and Drum March Back to the Nineteenth Century, 34 Ga.L.Rev. 291 (Fall 1999).  Now that the Supreme Court has actually eviscerated the Voting Rights Act of 1965, the voting rights of African Americans are again significantly imperiled.

Barbara Phillips is an attorney and social justice feminist. A graduate of Stanford Law (JSM) and North Western University School of Law (JD), you can check out her LinkedIn profile here.

Republished with permission from the author. Artwork added by the Alameda County Bar Association.