Few things pique the fury of the right wing quite like affirmative action. While affirmative action refers to a broad political range of actions taken to empower or uplift the disenfranchised, conservatives and even many liberals see affirmative action as one thing: cheating. That people of color who benefit from affirmative action are not working as hard, not achieving as much, and still asking for all the “rewards” of a college education or secure living wage job. This social narrative of cheating is as old as the Protestant work ethic, but in a world where media access has made us increasingly more empathetic to each others struggles, the capitalists are rightly concerned that we are gradually becoming more non-receptive to these arguments. Some capitalists are going with the flow, embracing diversity as just a new commodity to be owned by the bourgeoisie to exploit the working class. Other capitalists are worried about even conceding this ground, that it would create conditions of “racial balancing” (reparations, returning land to communities, etc.) that could seriously disrupt the social hierarchies that have helped sustain capitalism for the past 500 years. Outside of the tech industry and the nonprofit industry, this line in the sand attitude is the one held by most capitalists. While groups like McDonald’s and Victoria’s Secret will have anti-discrimination policies, these are meant to govern the relations between the lowest workers and their immediate management. In Fisher v. University of Texas (2013), there were many amicus briefs from major corporations filed in support of affirmative action.
However, these briefs can fairly be seen in totality as a PR move rather than a political move. Because groups that these corporations and their executives fund also filed amicus briefs, but in support of the petitioner. The CATO Institute, the Center for Individual Rights, the American Civil Rights Union, Judicial Watch Inc., Center for Constitutional Jurisprudence, and most of the judges on the majority opinion receive donations and funding from major corporations like Coors-Miller, the Koch Brothers, Walmart, Amway, BNY Mellon, Olin Corporation, and the Alleghany Corporation. Most of these corporations are international conglomerates that have controlling stakes in the majority of businesses in the United States, particularly through financing. William C. Richardson is a great example of this: in 2007, he was on the board of both Kellogg (filing for affirmative action) and BNY Mellon (filing against affirmative action through their various think tanks). It is also no coincidence that Richardson is now part of the Exelon Committee on Corporate Governance and CEO Emeritus of the W.K. Kellogg Foundation. This duality is necessary to maintain the illusion that the corporations which directly sell to individual consumers are on our side and care about the things that we care about. If it was clear that all the corporations were against working people, especially working people of color, it would necessarily create consciousness beyond the alienation that is experienced in the society of the corporate spectacle. This atomizing of individuals is the main purpose of constricting and preventing affirmative action.
Sandra Day O’Connor, as much as I wish it were not so, is one of the most important judges in the history of the United States. Particularly she was successful in laying the framework for a neoliberal border for affirmative action to not go beyond in Grutter v. Bollinger and Gratz v. Bollinger. Basically, the standard was placed on a scale of “racial quotas/balancing” to “holistic, individual diversity evaluation with a good faith effort to pursue race-neutral means.” This holistic standard has not satisfied either side: as represented by Justice Ginsburg, it is seen as unnecessary “subterfuge” that bounces around the issue of affirmative action, and as represented by Justice Thomas, it is seen as a standard that perpetuates racial classifications. These sides were pitted against one another in Fisher I, but the Court failed to deliver a strong opinion overruling Grutter or Gratz. Instead, Kennedy attempted to gut Grutter by saying that the “good faith consideration of race-neutral alternatives” had to be a “good faith demonstration of race-neutral alternatives” to a court. As such the case was remanded back to the Texas court. But what happened next was very surprising: the Texas court doubled-down, stating that because race was so entangled in a holistic review of diversity that it would create more of a racial classification to try to eliminate race from the admissions method.
The CATO Institute perhaps phrased the conservative view best in an amicus brief to the Court for the upcoming Fisher II case when they said that holistic review was “opaque” and as such could hide “racial balancing.” Here I believe the CATO Institute is being more intellectually astute, albeit with astounding amorality, about the issue than many of their liberal counterparts. They have recognized that Sandra Day O’Connor’s attempt to make holistic review into a tool that atomizes people failed, that the social understanding of race is such that any classification of race opens a window to the ability to recognize people not as individual failures but rather as people who as a community have been exploited and oppressed. To give it a Trotskyist spin, CATO recognizes that affirmative action could be used as a transitional program to raise consciousness among people of color. That what is blamed on “individual failings” is more accurately tied to legacies of history and the material oppression carried out by corporations and the state. From Columbus Day to Abraham Lincoln being portrayed as against racism, the capitalists try their best to create hegemonic narratives that deny any history that could provide an explanation for the poverty and violence of communities of color outside individual “laziness”, “savagery”, etc. Affirmative action’s danger to the ruling class has never been that it would allow the lazy to get rich or even, as Clarence Thomas would say, that it will make people have negative perceptions of people of color. Rather, the danger is that it would awaken people to the possibility that they deserve not only the facade of “equality of opportunity,” but reparations for the 500 years of colonialism and white supremacy waged against their communities.
Yikes! Reparations are a quick way to summon the ire of even the more liberal capitalists. And the liberals who support affirmative action will do everything in their power to avoid it. They will claim that their support for affirmative action derives from “diversity” being a compelling governmental interest, particularly for its ability to “break down stereotypes” and thus allow “all students to explore, develop, and express their individuality” (from the NAACP’s amicus brief in Fisher). Joshua Civin, counsel to the director of litigation at the NAACP Legal Defense Fund, Inc., wrote the following in an op-ed for The American Constitution Society:
An admissions system that relies exclusively on class rank may overlook students who take intellectual risks by enrolling in demanding classes outside their comfort zone. Or prodigies who focus all their energy on a subject in which they excel. Or late bloomers like Albert Einstein.
In an op-ed about use of racial classifications in university admissions, Civin does not cite any of the reasons why racism specifically could impact students. Instead, he cites race-neutral, capitalist-appealing traits like taking risks, being a prodigy, and commodifying their talents. And wouldn’t an example of a scientist who could not start work as early as their white counterparts because of economic and social constraints be more appropriate, like Roger Arliner Young? As Ta-Nehisi Coates wrote in his essay “The Case for Reparations”:
This confusion about affirmative action’s aims, along with our inability to face up to the particular history of white-imposed black disadvantage, dates back to the policy’s origins…America was built on the preferential treatment of white people—395 years of it. Vaguely endorsing a cuddly, feel-good diversity does very little to redress this.
There will be no happy ending to this story through any definition of affirmative action established by the Supreme Court. Whatever hopes there were to use affirmative action as a tool to build consciousness were squashed when the CATO Institute and their associates realized how dangerous even an atomized version of affirmative action could be. But there is hope. You cannot atomize reparations. You can not say that reparations need to be handed out as part of individualized holistic assessments of welfare benefits. And most importantly, there is no race-neutral gloss of why we should support reparations. There are plenty of questions to be answered: how would reparations intersect with transferring ownership of the land and property to communities? How would reparations work on an international scale? But the simple assertion of supporting reparations already takes us far past the pathetic standards held in Grutter and Fisher. Who knows where they could take us.
Struggles for reparations have already seen some unprecedented victories in the past few years. Here are just a few: