Excerpted From: Elijah McDonnaugh, The Limits of Equality: A People's History of Affirmative Action, 17 Harvard Law & Policy Review 43 (Summer, 2022) (176 Footnotes) (Full Document)


ElijahIMcDonnaughIn Black Reconstruction in the South, W.E.B. Du Bois explained that the persistence of racial hierarchy after the Civil War is best understood in terms of its value to American elites who derive power from a divided working class. He wrote:

[T]he theory of race was supplemented by a carefully planned and slowly evolved method, which drove such a wedge between the white and black workers that there probably are not today in the world two groups of workers with practically identical interests who hate and fear each other so deeply and persistently and who are kept so far apart that neither sees anything of common interest.

Du Bois believed that rich whites had secured the consent of poor whites to their own economic exploitation in exchange for the “public and psychological wage” of whiteness. This “wage” took many forms in society, including the exclusion of Blacks from public goods like education, to which poor whites were entitled. Indeed, while “[w]hite schoolhouses were the best in the community, and ... cost anywhere from twice to ten times as much per capita as colored schools,” for racial minorities (Blacks, in particular) “the doors of wisdom [were] ... shut tight and designed to remain that way ... [through the use of an] ideology of race inferiority to justify that situation and ensure that it would stand firm.”

The institutions responsible for producing these racial disparities rest their claims to legitimacy on compliance with the law, while simultaneously mystifying the law's function as an instrument of oppression. Typically, this mystification results from a widespread belief in “hegemonic ideologies,” meaning, a set of beliefs that presents the “parochial interests [of the ruling class] as representative of the interests of all social groups.” In the context of judicial decision-making, judges often rely on these ideologies as their premise; that is to say, the “facts [which] are assumed ... that are not true, but serve as the basis to guide judicial decisions,” while in turn, the law itself serves as a powerful medium for disseminating and legitimizing such ideologies. For example, although segregation under Jim Crow “harm[ed] blacks and benefit[ted] whites in ways too numerous and obvious to require citation,” the Supreme Court relied on eugenics and the biological race myth to attribute the inferiority of Black institutions to the purported biological inferiority of Black people, while portraying the flagrantly discriminatory Jim Crow regime as “equal.”

History shows that the Court's most backward decisions are rendered discursively rational through an implicit reliance on hegemonic ideologies that frame discriminatory laws as “equal” or “meritocratic,” and the resultant inequalities as the result of “social and legal practices that recognize innate differences.” This thinly veiled social-Darwinism has evolved alongside the nature of hierarchy itself, in form but not substance. Most recently, this evolution has given rise to a new “racial bourgeois,” which forms a mirror image of poor whites by accepting the “wages” of class domination in exchange for their willing consent to the superexploitation of racialized groups. Recent anti-affirmative action lawsuits filed by Students for Fair Admissions (hereinafter “SFFA”) and the Department of Justice for the Trump Administration (“Trump DOJ”) rely on a corollary of this structural evolution, the “model minority” myth, to attribute the mass exclusion of poor and non-white students from elite universities to innate racial differences rather than systemic inequality. These lawsuits have been accompanied by a steady drumbeat of misinformation that attributes the views of segregationists to the leaders of the Civil Rights Movement, thereby obfuscating the clear parallels between SFFA's recent lawsuit and the legal maneuverings of the infamous pro-segregation “Massive Resistance” Movement after Brown.

This paper was written in response to increasing engagement with and citation of such misinformation in the legal academy and the media at large. Although “fake news” has only recently become a popular topic of conversation, the far right has always and everywhere lied to enact its political agenda. In order to address such misinformation, this paper highlights the timeless features of the modern discourse surrounding affirmative action, beginning with Reconstruction. This paper traces the evolution of the methods the wealthy use to guard access to elite educational institutions, including the crucial role played by the Supreme Court. It also highlights the parallels between SFFA's and the Trump DOJ's recent admissions lawsuits and the legal maneuvers of the Massive Resistance Movement after Brown.

[. . .]

As the relatively moderate post-war Republican administrations gave way to unbridled neoliberalism, an alliance of billionaires, powerful corporations and their political representatives enriched themselves by subjecting workers to longer hours for less pay in more dangerous conditions, gutting the social safety net, lowering taxes on themselves, and slashing spending on public goods including national parks, healthcare, and education. Like the Redeemers, neoliberals have relied upon the ideology of race to stifle the working class's capacity to mobilize against their own exploitation. Indeed, Glazer's theory of ethnicity, the model minority myth and even biological race persist to this day, not because of their legitimacy, but because of their utility to American elites as mystifying ideologies that deepen racial divisions by positioning colorblindness, rather than substantive equality, as the normative end of racial justice.

Recent examples of this mystification include an official press release by the Trump DOJ claiming that Frederick Douglass--a former president of the Freedman's bank--would have opposed affirmative action, and the oft repeated lie that reactionary colorblindness is “Justice Harlan's view in Plessy ... [and] the rallying cry for the lawyers who litigated Brown.” These deceptions are legitimized in part by the Supreme Court's repeated insinuations that poor and non-white students are disproportionately excluded from elite universities not because they are disadvantaged, but because they are inferior. If we start instead from the animating premise of Reconstruction and the Civil Rights Movement, that “all men are created equal,” the extent to which the poor and nonwhite remain absent from elite universities can only be understood as a measure of society's failure to give them a fair chance.

In reality, for poor whites and the “racial bourgeois” alike, historic events like SFFA's lawsuit represent a double-edged sword, an unnecessary compromise where a better alternative for all is possible. The economic exploitation of the entire working class is made possible by the maintenance of racial hierarchy; the legitimization of racism-denial in any context will legitimize more extreme attacks on minority rights in the future (or, in the words of James Baldwin, “If they take you in the morning, they will come for us that night”). Conversely, improving the quality of education provided to poor and nonwhite students, will pay dividends by stimulating the economy, improving the quality of education for all Americans, and beginning the process of mending the badly frayed social fabric of American life. As wealth inequality approaches levels unseen since the eve of the Great Depression and the world continues to be shaken by historically large protests against economic exploitation and racist police violence, Mari Matsuda's exhortation towards addressing Negative Action by increasing public investment in education, is worth revisiting:

When university administrators have hidden quotas to keep down Asian admissions, this is because Asians are seen as destroying the predominantly white character of the university. Under this mentality, we cannot let in all those Asian overachievers and maintain affirmative action for other minority groups ... because that will mean either that our universities lose their predominantly white character or that we have to fund more and better universities. To either of those prospects, I say, why not?


New York City-based attorney.