Monday, October 15, 2018

 Abstract

excerpted from: David B. Oppenheimer, Dr. King's Dream of Affirmative Action, 21 Harvard Latinx Law Review 55 (Spring, 2018) (Footnotes) (Full Document)

 

David B OppenheimerThe legitimacy of race-conscious affirmative action is among the most contentious issues of law and policy in American society. Discussions of affirmative action are often heated, in part because the very meaning of the term is contested. What are we arguing about when we try to discuss affirmative action? For some, affirmative action means racial and gender quotas. For others, it means proportional representation, preferences, tiebreakers, goals, aspirations, outreach/recruiting efforts, mentoring, monitoring, self-examination, or affirmative anti-discrimination efforts. Affirmative action policies are used, and used differently, in employment hiring and promotion, college and university admissions, procurement of goods and services, and oversight of government contracting. Affirmative action can be a court-ordered remedy, a voluntary policy adopted by private or public entities, a legislative or administrative mandate, or a professional best practice. Discussions of affirmative action sometimes frame the question as one of Constitutional law, and other times as a question of administrative law, social/ political theory, morality, policy or politics. As used in public policy discussions, legal arguments and political debates, it is usually tied to race, ethnicity or gender, but it can also be used to describe policies to assist military veterans, or the poor, or for that matter the rich, as with legacy admissions to elite private colleges.

Although demands for policies conferring benefits based on race-based proportional representation have been around for many years, the use of the term "affirmative action" to describe such policies dates only to the 1960s. The term itself has been part of the legal lexicon since the 1930s, when it was used to describe the remedies available under the National Labor Relations act. It became a legal term of art in the anti-discrimination context in 1961, when it was used in an Executive Order governing government contracting issued by President Kennedy.

With regard to college and university admissions, the contemporary debate about affirmative action increasingly pits those who support race-based affirmative action against those calling for class-based affirmative action, which they frequently describe as a "color-blind" alternative. Two leading advocates for class-based affirmative action are Georgetown University law professor Sheryll Cashin, and Century Foundation senior fellow Richard D. Kahlenberg. Michael Bloomberg has launched an initiative to help low-income high achieving students, regardless of race, attend top colleges.

In response, Berkeley Law senior fellow Richard Rothstein has argued that race-based affirmative action serves important social purposes that would not be served by substituting, or adding, class-based affirmative action. By contrast, Columbia University President Lee C. Bollinger argues that we can (and should) have both.

Cashin draws support for her position from the success of the Texas 10% plan and the Sciences-Po zones of economic opportunity plan, both of which use place-based affirmative action as a substitute for race-based affirmative action. But as Justice Ginsberg noted regarding the Texas plan, it provided diversity only because of residential segregation, and was thus a race-conscious plan that only an ostrich could view as race-neutral. And the Texas plan also uses race-based affirmative action to supplement its place-based plan, a position the Supreme Court approved in Fisher II. Rothstein argues that the Cashin approach leaves behind too many middle class Black students who still suffer substantial damage from racial discrimination, both in the form of present effects of past discrimination, and through continuing discrimination. The experience at the University of California, Berkeley, Rothstein's institution (and mine), bears this out. Black undergraduate enrollment at Berkeley has dropped from 7.8% in 1997 (the last year Berkeley used race-conscious affirmative action) to 2.8% today.

Kahlenberg points to Berkeley as a success story for class-based affirmative action. Thirty-four percent of Berkeley students receive Pell grants, a common measure of lower socioeconomic class. By comparison, at Yale only 12% of the students receive Pell grants. In 2009 UC Berkeley had more students receiving Pell grants than the entire Ivy League combined. But Rothstein argues that while socioeconomic diversity and social mobility are worthy goals, overcoming the legacy of racism and its continuing manifestation is a far more compelling justification. Bollinger's answer is to do both. Kahlenberg is skeptical. His response is that while some schools, including Columbia and Amherst, have successfully used both race and class, most will not, finding race-based affirmative action seductively easier.

While I have found no instance of Rev. Dr. Martin Luther King, Jr. ever using the term "affirmative action," forty-eight years after his assassination his name is often invoked in the affirmative action debate by opponents of race-based affirmative action, who cite Dr. King's "I Have a Dream" speech as evidence that he supported "color-blind" policies, and thus presumably would have opposed race-conscious affirmative action. But when we examine the historical record it is clear that while Dr. King dreamed of a time when racism - and thus race - would be irrelevant, he was a supporter of both of these forms of affirmative action. On the one hand, he spent much of the last six years of his life actively promoting what we would describe today as race-conscious affirmative action, including the use of racial quotas in employment. Specifically, from 1962-68 Dr. King orchestrated and implemented "Operation Breadbasket," a civil rights boycott campaign that demanded employment quotas for Black American workers based on their numbers in a workforce, neighborhood or city. Yet on the other hand, with regard to class-based affirmative action, Dr. King supported a massive war on poverty. In advocating for special benefits for poor Americans he sometimes used color-blind language and pointed out that it would benefit poor whites as well as poor Blacks, while at other times he justified it as an example of the kind of reparations to which Black Americans were entitled under the equitable remedy of restitution for unpaid wages.

Following this introduction, in Parts I-III of this article I describe Dr. King's support for affirmative action quotas in Operation Breadbasket and explore the origins of his position. I point to three primary influences on Dr. King's support for quotas. First, Dr. King looked to the long line of historically successful boycott campaigns in the 1920s-40s, which operated under the slogan "Don't Shop Where You Can't Work" and called for boycotts of business establishments that did not hire Black workers in proportions reflective of the Black community at large. These boycotts provided a blueprint for the boycotts Dr. King organized in Montgomery, Birmingham and elsewhere, culminating in Operation Breadbasket. Second, Dr. King was inspired by the work of Rev. Leon Sullivan, an activist minister from Philadelphia who organized a "Selective Patronage" boycott campaign, itself inspired by the "Don't Shop Where You Can't Work" campaigns. Rev. Sullivan worked with Dr. King in replicating his Philadelphia boycotts in Operation Breadbasket. Third, at the invitation of Prime Minister Nehru and motivated by a desire to study Gandhian principles, Dr. King traveled to India in 1959. While there, he was exposed to the Indian Constitutional system of caste-based quotas in employment and education ("reservations"), and was highly impressed by their effectiveness. These three influences gave rise to Dr. King's organization of boycotts that demanded proportional hiring of Black employees in Black neighborhoods.

In Part I, I discuss the "Don't Shop Where You Can't Work" campaigns that began in the 1920s. During this time, employment discrimination against Black Americans was required by law in parts of the U.S., was widely practiced elsewhere, and was either compelled or permitted by law everywhere. While some White employers voluntarily hired Black workers throughout U.S. history, it was in the 1920s, as the modern Civil Rights Movement was beginning to find its voice, that civil rights activists began to focus on the demand that private White employers hire Black workers, and these demands were commonly (and controversially) framed as demands for proportional hiring, or quotas. The demands were often made in the form of boycotts organized against employers who provided goods and/or services in Black neighborhoods but refused to hire Black workers, with boycott organizers frequently carrying signs exhorting Black shoppers, "Don't Shop Where You Can't Work!" From the 1920s through the 1960s, these campaigns played an important role in the Civil Rights Movement.

The boycott campaigns also gave rise to the critical legal question of when such boycotts could be enjoined as illegal restraints of trade. In two rarely discussed early decisions on affirmative action, the Supreme Court held that boycotts supporting non-discrimination were lawfully protected, but that boycotts supporting proportional hiring were not. This distinction between non-discrimination and quotas continues to roil legal and policy discussions about civil rights. In the context of hiring by private employers, it was resolved in the 1964 Civil Rights Act, where Congress elected to neither prohibit nor require hiring quotas, and in two decisions by the Supreme Court upholding the compromise, within proscribed limits.

In Part II, I discuss the second influence on Dr. King's support for affirmative action quotas: the work of Rev. Leon Sullivan during the late 1950s. Rev. Sullivan organized the "Philadelphia Selective Patronage" Movement, itself inspired by the "Don't Shop Where You Can't Work" campaigns, that sought to radically alter the way in which private Philadelphia employers hired Black American employees. In 1962 Dr. King learned of Rev. Sullivan's work and invited him to come to Atlanta to help organize Dr. King's employment quota boycott program, Operation Breadbasket.

In Part III, I discuss the third influence on Dr. King's support for affirmative action quotas, his 1959 trip to India. Dr. King traveled to India at the invitation of Prime Minister Nehru, motivated by a desire to study Gandhian principles. While there, he was exposed to the Indian Constitutional system of caste-based quotas in employment and education ("reservations"), and was highly impressed by their effectiveness. In the nine remaining years of his life, Dr. King often spoke of the Indian Constitutional reservations systems with admiration, and as an example of how India was doing more than the United States to address the problem of racial inequality.

Then, in Part IV, I discuss how these three threads - the "Don't Shop Where You Can't Work" campaigns, the work of Rev. Leon Sullivan, and Dr. King's trip to India - inspired Dr. King to develop Operation Breadbasket, his boycott/quota program, first in Atlanta and then nationally. By the mid-late 1960s, Dr. King was trumpeting the success of this national boycott movement in creating many thousands of jobs for Black Americans throughout the country.

In Part V, I discuss Dr. King's support of class-based approaches to remedying racial inequality. I focus on Dr. King's support for affirmative action-type programs that address the problem of poverty. In advocating for special benefits for poor Americans he sometimes used color-blind language and pointed out that it would benefit poor whites as well as poor Blacks, while at other times his focus was on Black Americans.

In Part VI, I will discuss Dr. King's justification for affirmative action-type programs that focused on remedying racial inequality. Though Dr. King is not commonly associated with the movement for reparations, it is the principle that best describes his views. From the forgotten language of his 1963 I Have A Dream speech, to his 1964 post-Birmingham book Why We Can't Wait, to his 1967 testimony before the National Advisory Commission on Civil Disorders (the "Kerner Commission"), Dr. King frequently justified race-conscious programs to aid Black Americans on a theory of reparations, arguing that Black Americans were entitled to reparations under the equitable remedy of restitution for unpaid wages.

In Part VII, I discuss Dr. King's influence on Latinx leaders in the Civil Rights movement and later, on California's battle over Proposition 209. As Dr. King devoted his work to combatting poverty, regardless of race, ethnicity or national origin, he reached out to César Chávez, the leader of the United Farm Workers and a celebrated leader within the Latinx community--whom King described as his "brother[ ] in the fight for equality." Dr. King hoped to work closely with Chávez on the Poor People's Campaign. Unfortunately, his life was cut short by an assassin's bullet before they had the opportunity to work together. But throughout this period as Dr. King embraced his campaign against poverty for all Americans regardless of race or ethnicity, he simultaneously continued to pursue the work of operation breadbasket, focusing on demands for job quotas for Black Americans under the threat of boycotts.

A generation after Dr. King's assassination, California became ground zero in the fight over affirmative action. An anti-affirmative action group proposed the California Civil Rights Initiative - or Proposition 209 - to ban affirmative action in public education, contracting and employment. They used Dr. King and the excerpt from his I Have A Dream speech as the centerpiece of their successful campaign. Among those who took a leading role in fighting against the initiative were the Latinx leaders of California in education and politics, including labor and civil rights activist Dolores Huerta and attorneys from the Mexican American Legal Defense and Education Fund (MALDEF).

I conclude that the unifying theme in Dr. King's advocacy was inclusiveness of all potential remedies. When we examine the body of his work, and particularly his writings, sermons, speeches and public testimony, this becomes clear. Here again, if we examine the less-often cited portion of his iconic 1963 I Have A Dream speech, where he called for reparations; his 1964 book "Why We Can't Wait" and his 1965 Independence Day sermon at his Atlanta church, where he invoked Indian affirmative action ("reservations") and called for what today we would call affirmative action; and his 1967 testimony before the Kerner Commission, where he invoked Indian reservations and called for reparations and race-based affirmative action, what emerges is a powerful call for both forms of affirmative action being debated today: race-based and class-based. Any assertion that Dr. King was an opponent of race-conscious affirmative action must rely solely on a single phrase in a single speech, and avoid his long-standing commitment to race-conscious remedies in his speeches, writings and - most importantly - his actions. But neither should we conclude that he opposed class-based approaches to affirmative action; he supported both forms, to be used in tandem.
. . .

The unifying theme in Dr. King's advocacy was inclusiveness of all potential remedies for inequality. When we examine the body of his work, and particularly his writings, sermons, speeches and public testimony, this becomes clear. Here again, if we examine the less-often cited portion of his iconic 1963 I Have A Dream speech, where he called for reparations; his 1964 book, Why We Can't Wait, and his 1965 Independence Day sermon at his Atlanta church, where he invoked Indian affirmative action ("reservations") and called for American affirmative action; and his 1967 testimony before the Kerner Commission, where he invoked Indian reservations and called for reparations and race and class-based affirmative action, what emerges is a powerful call for both race and class-based affirmative action. Any assertion that Dr. King was an opponent of race-conscious affirmative action must rely solely on a single phrase in a single speech, and avoid his long-standing commitment to race-conscious affirmative action in his speeches, writings and - most importantly--his actions. But neither should we conclude that he opposed class-based approaches to affirmative action; he supported both forms, to be used in tandem.

As we continue to debate the costs and benefits of affirmative action, Dr. King's views are likely to continue to be invoked. Those who support race-conscious affirmative action as a remedy for past and continuing racism can find much in Dr. King's words and deeds to support their arguments. Those who support class-based affirmative action as a social response to endemic poverty and lack of social mobility can also find much in his speeches and activism to support their view, as long as it is combined with race-conscious affirmative action. But those who rely on a small selection of Dr. King's I Have a Dream speech, or other speeches or writings where he expressed the hope that the disease of racism would someday be cured, should be admonished for their use of his words taken entirely out of context. Dr. King's support for affirmative action-type programs based on both race and class was unquestionable.


Clinical Professor of Law, University of California, Berkeley.

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