This commentary originally appeared on The American Prospect.
Chief Justice John Roberts says that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In university admissions, this means becoming “colorblind,” taking no affirmative action to favor African Americans. Apparently intimidated by Roberts’s Supreme Court plurality, many university officials, liberals, and civil-rights advocates have exchanged their former support of affirmative action for policies that appear closer to Roberts’s.
In effect, these newer plans say that the way to stop discrimination on the basis of race is to pretend colorblindness but devise subterfuges to favor African Americans. One approach is to favor low-income students regardless of race. Another adopts the Supreme Court’s embrace of diversity as educationally beneficial, prompting universities to enroll disadvantaged minority students for this purpose while making no obvious attempt to remedy historic wrongs. Some persuade themselves that these are the best possible policies.
In recent years, Justice Ruth Bader Ginsburg has been one of the few leading public figures, on or off the Court, unabashedly willing to challenge Roberts’s colorblindness. In a case decided in April, she gained a new ally in Justice Sonia Sotomayor for an uncompromising defense of affirmative action.
Instead of “winks, nods, and disguises,” Ginsburg has called for race-conscious policy to offset the still-enduring effects of slavery and the subsequent unconstitutional exploitation of its descendants under Jim Crow.“Only an ostrich could regard the supposedly neutral alternatives as race unconscious,” Ginsburg has said, and only a contorted legal mind “could conclude that an admissions plan designed to produce racial diversity is not race conscious.” Sotomayor recently added (mocking Roberts’s aphorism) that “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”
Of the books by African-American law professors here under review, Randall Kennedy’s For Discrimination: Race, Affirmative Action, and the Law explains why race-conscious college admissions policies are a reasonable and modest remedy for these unfortunate effects. Sheryll Cashin’s Place, Not Race is a well-argued plea for ostrich-like plans.
In contrast to this plea, Cashin’s previous book, The Failures of Integration, was an impassioned call for housing policy that would finally incorporate black families into American society. It was anything but colorblind. “Indirect approaches are no substitute for a frontal attack on what is ailing us as a nation,” she wrote, concluding that “the rest of society should stop fearing us [blacks] and ordering themselves in a way that is designed to avoid us where we exist in numbers. America created slavery, Jim Crow, and the black ghetto. America has shaped stereotypes grounded in fear of black people. … America has to get beyond fear of black people and fear of difference to begin to order itself in a way that is consistent with its ideals.”
Now, however, writing about affirmative action in college admissions—an issue considerably less contentious than desegregation of the suburbs—Cashin has become convinced that race-conscious policy isn’t such a good idea after all. It incites resistance to black progress that she believes might not otherwise exist. Failing to speak openly and candidly on the subject of race leads Cashin to pander to white hostility: “Social psychologists link much opposition to health care expansion to high levels of racial resentment. Again, I am not saying that opponents are racist.” What else could she be saying? Convinced that race-based affirmative action is politically dead, Cashin seeks an alternative more palatable to white opponents. She concludes that race-based affirmative action gives unfair advantage to middle-class African Americans who don’t need it, while low-income youth of all races do.
Cashin certainly has cause for concern, as elite colleges fulfill goals for black enrollment with children of well-educated African and Afro-Caribbean immigrants rather than descendants of American slaves—too many Barack Obamas and not enough Michelles. Cashin illustrates with her own family—though with origins in American slavery, it is a well-established member of a multi-generational black elite—and concludes with a letter to her six-year-old twin sons, students at a Mandarin immersion school. She tells them that her proposal will deny them undeserved privileges they can manage without: “I would trade the benefit to you of affirmative action for a country that does not fear and demonize people who look like you,” she writes, as though such a deal were on offer.
Cashin, an “integration pioneer” from childhood—she attended predominantly white schools—is now a Georgetown University professor, having graduated summa cum laude in electrical engineering from Vanderbilt, studied law at Oxford, and clerked for Thurgood Marshall at the Supreme Court. Her husband, like her, is a “professional parent of color.” Her sons’ paternal great-grandparents built a profitable corporation (it continues to this day with family leadership) and had five children, of whom four became doctors and the fifth a lawyer. On Cashin’s side, the boys’ great-grandparents went to Fisk University, as did their grandfather, who went on to medical school; their great-grandmother was a high-school principal.
It’s fair to say that giving Cashin’s sons admission advantages to elite colleges would be unjust. They don’t need it. Cashin is also right to point to a gulf between their inherited advantages and the handicaps suffered by the lowest-income African Americans living in high-poverty neighborhoods where the “undertow” of gangs, violence, profiling police, racially skewed criminal justice, parents with little literacy, and widespread unemployment stack the odds against youth who may try to escape.
Cashin wants to extend university preferences to such youth and to those of all races and ethnicities in similar circumstances. Her ground here is shakier. While other groups experience hardship and discrimination, few nonblack young people suffer handicaps of similar intensity—as her previous book made clear. What’s more, Cashin’s understanding of the country’s, and African Americans’, social-class distribution is without nuance; she focuses only on the poor and the affluent, insisting that African Americans in the latter group can compete without special favors. Yet her college admissions recommendations mostly overlook a substantial, nonaffluent African-American middle class, sitting between the very poor and the rich. These are children not of inherited wealth and status but of ordinary lawyers, engineers, administrative workers, civil servants, paraprofessionals, police, firemen, bus drivers, or blue-collar workers—children of men like Michelle Obama’s father, who worked in Chicago’s water plant, or Randall Kennedy’s father, a postal clerk who completed only two years of college. This working and middle class of African Americans both needs and deserves affirmative action to level the playing field after centuries of discrimination.
