The Diversity Scam: It Isn't Affirmative Action

"When I use a word," Humpty Dumpty said in a rather scornful tone, "it means just what I choose it to mean-neither more nor less"

It has been widely said and almost unanimously accepted that June's Supreme Court decision in Grutter (the Michigan law school admissions case) was a "victory for Affirmative Action."

Historians who recall what was involved in the 1978 Bakke case will question that.

The recent Michigan case was not even about "Affirmative Action," as that phrase was originally used in the civil right effort. A brief review of what led to Bakke is in order.

After 1954 when school segregation was declared unconstitutional, there was a wrenching struggle that was won in the streets, in the courts and ultimately in Congress.

• In the courts, there followed the necessary consequence of the decision that outlawed segregation. Step by step, for a decade, the Court demolished the customs and laws treating, or condoning treatment of, Negroes as a separate and lower caste.

• In the streets there was a primarily non-violent struggle to end those customs and laws; it became, as judicial vindication was won, an effort to enforce the Constitution as now declared to mean what the framers of the Fourteenth (and the Fifteenth, voting rights) had intended.

• In the Congress there was a response to the nation's acceptance of the justice of the Negro revolt; laws were enacted forbidding exclusion from educational opportunity, employment and housing and directed against infliction of other indignities. But "victory" for the equality promised by the Fourteenth Amendment was seen to be far off.

The most obvious reason for restraint in jubilation was noncompliance or grudgingly limited compliance with desegregation. There were gains of a sort on other fronts -- in housing, education and employment -- but it was painfully obvious that the major burden of past oppression had not been remedied.

There developed among white Americans, particularly leaders in education and business, a consensus that fulfillment of the Constitution's promise of equality required something more than the negative commands that had been enacted.

That "something," the remedy for past injustice, came to be called "Affirmative Action."

At Howard University in 1965, President Lyndon Johnson expressed the nation's mood. It was summed up in the phrase, "You do not take a man who for years has been hobbled by chains, bring him to the starting line of a race, saying 'you are free to compete with all the others.' "

The breadth of that consensus is shown in a 1971 statement by Ronald Reagan, then California's governor: "edicts of non-discrimination are not enough: justice demands that every citizen consciously adopt a…personal commitment to affirmative action which will make equal opportunity a reality."

The end of the consensus favoring the original concept of Affirmative Action came fast. The necessary remedies that the establishment -- the white establishment -- adopted (preference in employment, business opportunities, and school admission) were seen by many as a threat. Some who had won advancement in contests in which Negroes were not permitted to take part feared danger of displacement.

The slogan "Reverse Discrimination" was coined and became fashionable. Litigation that itself energized resistance began.

In this context, the case of Alan Bakke arrived at the Court. He claimed that he was denied Equal Protection by a plan that reserved 16 out of 100 places for minorities in admission to a medical school that had no minorities in previous classes.

Bakke's case resulted in a major defeat for the original concept of Affirmative Action. The majority of five included Justice Lewis Powell, whose opinion declared that long-standing broadside denial of constitutional right to a group, did not justify a remedy for members of the group. The reason he gave, "there was no judicial determination of constitutional violation as a predicate to the formulation of a remedial classification" is belied by Justice Powell's own finding, made earlier in his opinion: "The Equal Protection Clause, however, was '[v] irtually strangled in infancy by post-civil-war judicial reactionism.' "

The enormity of what the Court had done--the rejection of sound constitutional support for Affirmative Action--is shown in the dissenting opinion of the judicial giants of that era, Justices Brennan, White, Marshall and Blackmun.

It was eloquently denounced in the separate dissent delivered by Justice Thurgood Marshall. His dissent deserves to be used as a document for American history classes for its description of the treatment of the Negro over the centuries. A single quotation, even a few quotations, cannot do it justice, but here's one:

"The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups. It is not merely the history of slavery alone but also that a whole people were marked as inferior by law. And that mark has endured."

The demolition of the foundation for Affirmative Action was the principal consequence of Bakke. But there was a "consolation prize." Citing Harvard's plan for integration of its student body, by incorporating "race" in a previous program providing for geographical, athletic prowess, and other forms of diversity, Justice Powell opined that plans of that sort would pass muster.

That was not nothing. It was a step forward after 10 steps backward. It was the basis for the integration of colleges and professional schools across the nation. But even that was threatened as the Court developed and applied the negative principles of Bakke in a variety of contexts.

The Michigan cases came along as Powell's minor concession itself was endangered in decisions at the intermediate appellate level. The fight to defend the diversity plans that had been developed at Michigan was well organized. Despite a broad sweep of support it was only half successful.There was a defeat at the college level. Michigan's parallel effort to achieve diversity among undergraduates was struck down.

It is not possible in a few words to discuss the soundness of the Court's distinction between Gratz (college) and Grutter (law school). But it was striking to see in Justice Ginsburg's dissent in the former, echoes in 2003 of the particulars offered in 1978 by Justice Marshall. To read them together raises the question, "Progress?"

To the extent that the law school case was a victory, it was not a victory for "Affirmative Action."

That Affirmative Action was not involved in the Michigan cases is a minority viewpoint. It may never prevail against the bizarre decision to call "diversity" by the name of the previously rejected remedy. But there is a functional difference that can't be ignored.

• Affirmative Action was developed as reparation for wrongs of the past. Its guiding principle is that remedial action is owed to members of a class previously denied their Fourteenth Amendment rights.

• Diversity is not meant as a remedy. It looks only to the future and is indifferent to past wrongs. Its aim is the improvement of the functioning of the institution and it assists in and enriches the education of black and white alike.

The violations of the Fourteenth Amendment that were prevalent for so long were not involved in the recent victory.

The victims of the"mark [that] has endured" (per Justice Marshall, reconfirmed and updated by data referred to by Justice Ginsburg) have won nothing. The conscience of those who were not victims is dulled; they are misled into a belief that less attention is needed.

Those who support the"Diversity" practice of the Universities have inadvertently, if innocently, damaged a far more important cause by acquiescence in the decision of the media and of publicists in general to call something"Affirmative Action" that is not and has not been the remedial action that was contemplated by the originators and practitioners of true affirmative action.