Why We Still Need Affirmative Action

This legal scholar says that these policies are still needed to level the playing field.

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The idea of constitutional colorblindness is still used in modern legal discourse, often in debates regarding affirmative action. Today individuals opposed to affirmative action argue, in part, that our Constitution does not allow for special assistance for minorities because the document makes no mention of color or distinction among races.

Of course, a careful reading of the original text can counter this view. The Three-Fifths Compromise and the Fugitive Slave Clause provide direct evidence that the original framers made conscious color distinctions. Yet according to anti-affirmative action thinkers, providing help to disadvantaged groups of people distinguished by their race is unconstitutional. This use of colorblindness is, ironically, the exact opposite of that employed by the 19th-century activists.

Advocates of affirmative action as a necessary step toward social equality in American society rightly see this contemporary embrace by those to the right of the colorblind argument as a clever but disingenuous endorsement of the facial-equality concept, as opposed to a sound and sincere argument for genuine social and racial equality. Making a colorblind argument of this sort implies that the rights of African Americans before the law are, in the so-called postracial era of Barack Obama, no different from their actual rights -- and, thus, whites and blacks are completely equal. This idealistic vision of American society does not, unfortunately, accord with reality.

The colorblind-Constitution theory, at first glance, seems to provide a compelling argument for equality. But despite its historical roots in the abolition movement, it doesn't actually work as a remedy for discrimination against African Americans. The key concept behind the original colorblind argument made by 19th-century abolitionists was equality before the law; their vision was of a country in which nobody saw color, so everyone, it would follow, would be inherently equal.

While this is certainly an ideal for which to strive, the problem with that view today is that African Americans were subjected to decades of discrimination and unfair treatment, even after the abolition of slavery, during the repeal of Reconstruction, through the birth of Jim Crow in the 1890s and continuing throughout much of the 20th century. Today the case can certainly be made that African Americans are "facially equal" to white Americans. But because they were so disadvantaged by decades of discrimination, simply removing race from our national discourse and providing no remedial help to people who were historically and systematically disadvantaged simply cannot lead to true equality.

Achieving True Progress

Interestingly, the great African-American intellectual W.E.B. Du Bois made that same argument in the late 19th century. In an 1897 article in the Atlantic Monthly entitled "Strivings of the Negro People," he wrote of the need for American society to go far beyond the simple elimination of color as a factor in the determination of rights. After decades of brutal and inhumane treatment, it was unreasonable to simply throw African Americans into a world that declared them legally "equal" but where, in reality, they were hated and degraded. If all they were awarded was equality under the law, he argued, blacks would never be given genuine opportunities to become significant contributors to American society as equals to their fellow white citizens.

In fact, Du Bois, a man who was ahead of his time in both his vision of African Americans' aspirations in U.S. society and his rights-remedies argument, made perhaps the earliest defense of affirmative action: Rather than ignoring color, we should recognize color, admit that centuries of unequal treatment have inevitably put African Americans at a significant socioeconomic disadvantage and then remedy that through legislated social change. He believed that providing facial equality could not possibly be enough.

Du Bois' cogent and persuasive argument applies directly to our contemporary debate over affirmative action. It was then, and remains today, the only way for black people to achieve the "true progress" of which he spoke.

Perhaps, at some point in America's future, such remedies won't be necessary. Maybe, in the years to come, facial equality and true equality will meld into one homogeneous idea that encompasses the rights of all Americans. As Supreme Court Justice Ruth Bader Ginsburg wrote in 2003: "From today's vantage point, one may hope, but not firmly forecast, that over the next generation's span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action."