Affirmative Action's Modern Purpose

Looking at it as an educational necessity as opposed to a reparations program is the key to its success.

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(The Root) -- The Supreme Court decision this week in Fisher v. University of Texas upheld the winning argument and vision that my late husband, John Payton, put forward as the lead attorney in Grutter/Gratz v. Bollinger (the University of Michigan affirmative action case). That was the landmark decision decided exactly 10 years ago, in which the court strongly confirmed that our nation's colleges and universities can and should strive to ensure that the critical pathways to leadership and opportunity that they create are open and accessible to students of all races. If John, who died last year at the age of 65, had not left us so prematurely, he would be the face and the voice on the news and in the blogosphere today spinning out the talking points about how to interpret this latest decision.

In the progressive community of minorities, we are all applauding the affirmation of the educational importance of diversity by the Supreme Court. And well we should. But I do recall that years ago, when John proposed to lift the argument from Justice Lewis Powell's concurrence in the Bakke v. University of California Regents decision -- that a critical mass of racial diversity is an education necessity -- to be the primary vision for the future of affirmative action, recognizing that it was the only way to win the Michigan cases for which he was lead attorney, there were many in the civil rights community who decried the departure from what had been fundamentally an argument for affirmative action based on remedial justice. Essentially, it was the reparations argument.

Bakke was a loss for our side. John had the vision to not only salvage that loss in terms of the core argument for affirmative action but also to find a pathway that could put us back in the winner's circle, to preserve past gains and generate future possibilities.  

I don't raise this point now to vindicate John. He was such a brilliant brother; it always took time to catch up with his thinking. Rather, I raise it as a marker of how our thinking and strategies have evolved. 

This is not to say that the sins of the past have been repaired or redeemed. Not even close! Actually, the sins of the past are being replicated and reinvented. John always pointed to the mess in the public schools as exhibit No. 1 on this point. No more than 50 percent of all students enrolling in public schools across our nation graduate. It is hard to believe that the public school system in the U.S. was one of the Reconstruction era institutions developed after the Civil War to redress the harms of slavery and the situation of the freedmen and freedwomen.

And look at the court's decision today, tearing out the heart of the Voting Rights Act. The court fails to recognize that discrimination is still a chronic barrier to full participation in our democracy in many parts of our discussion.

This is also not to say that this country has no further need to engage in difficult discussions about our past and the meaning of equality. At the core of John's diversity and critical-mass theories and arguments was an insistence that we must be in the room to generate and inform those difficult discussions.

Our arguments for justice now must be inclusive and forward-looking. Justice for us must be seen as translating into progress for our country and ultimately (hopefully) the international community. Our history of oppression is important because it is a lesson that informs future generations about the cost of exclusion to everyone, not just those left out. That point is of critical educational importance for those who will build global institutions for the future.

Gay McDougall is an international human rights lawyer who has specialized in minority rights and racial justice worldwide. She is the former United Nations independent expert on minority issues.

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