When Affirmative Action Was White by Ira Katznelson
When Affirmative Action was White: An Untold History of Racial Inequality in Twentieth-Century America
by Ira Katznelson
Norton. 238 pp. $25.95
Among many possible outcomes of the Supreme Court makeover now in progress is a new focus on affirmative action, also known as racial preference. This policy has had a long run as a hot-button issue in America; the questions swirling around it seem never to die, and never to get resolved. The Court itself had a singularly dismal day on June 23, 2003, when it served up two different decisions about admissions at the University of Michigan, ruling against racial preferences at the university's undergraduate college but upholding them at the law school.1
As presently practiced on campuses or in the workplace, affirmative action satisfies almost nobody. Conservatives tend to see the basic proposition as a series of elaborate, dishonest dodges designed to circumvent merit-based standards. Liberals, plainly less unhappy, see the existing preferences as inadequate. Either way, however, the argument itself has become a bit of a bore in recent years, and has been increasingly relegated to the intellectual sidelines.
Ira Katznelson wants to get the argument going again, and believes he has some new thoughts to bring to the table. About that, he could be right. A Left-leaning scholar based at Columbia, where he occupies an endowed chair in history and political science, Katznelson has in the past criticized modern liberalism as intellectually flabby and politically unprincipled, an obstacle to the truly egalitarian society he wishes to create. The surprise of this book is that the same critique of liberalism is central to his case for affirmative action.
That case leans heavily on history. Katznelson reminds us that affirmative action is customarily defended by liberals as an effort to undo the effects of many generations of black slavery and oppression. To remedy that injustice, as President Lyndon Johnson declared in a much quoted speech at Howard University in 1965, a policy of mere nondiscrimination would not be enough:
You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “you are free to compete with all the others,” and still justly believe that you have been completely fair.
To Katznelson, however, President Johnson had it all wrong, and the phrase “hobbled by chains,” implying as it did that without government intervention blacks would be simply incapable of making their way in the modern economy, was grievously misleading. To the contrary, he maintains, black America would long since have upgraded itself on its own had it not been for systematic betrayals by liberals themselves, and specifically by the Roosevelt and Truman administrations.
In successive chapters on welfare legislation, labor law, military segregation during World War II, and the postwar treatment of veterans, Katznelson demonstrates that the country's liberal Democratic leadership repeatedly deferred to the racists who controlled Southern politics and made possible the election of Democratic Presidents. Given their hammerlock on the party, the Southerners succeeded again and again in ensuring that even ostensibly color-blind programs would be administered at the local level; they thereby all but guaranteed preferential treatment of whites, especially but not exclusively in the South. A large case in point cited by Katznelson was the GI Bill of Rights, which, properly celebrated for its educational benefits, low-cost mortgages, and business loans, substantially bypassed black veterans.
According to Katznelson, Southern Democrats in Congress also saw to it that some of FDR's New-Deal legislation would simply not apply to blacks. He returns repeatedly to the fact that in the 1930's and 40's, maids and farm workers accounted for the great bulk of black employees. Yet the Wagner Act and other labor laws failed to protect union-organizing efforts in these occupations, which also went uncovered by Social Security or the new minimum-wage laws.
By the late 40's, white America was receiving an avalanche of benefits from the New Deal and veterans' programs, while black America, which needed far more, got far fewer. Were it not for this devastating injustice, Katznelson insists, Johnson could have delivered a very different speech at Howard. He could have talked about the emergence of a sizable black middle class, and have plausibly proposed nonracial solutions to the lingering problems of Southern poverty.
But history took a different turn, Katznelson writes, which is why, today, we are in need of a remedy that will at last right the wrong. Affirmative action is that remedy, but until now it has lacked a compelling rationale. To supply one, Katznelson points to the famous Supreme Court decision in the 1978 case of Bakke v. University of California.
Speaking for the 5-4 majority in that case, Justice Lewis F. Powell held that, while outright quotas favoring black applicants were impermissible, it was acceptable in admissions and employment decisions to “take race into account”—indeed, to make it a “plus” factor. But Powell added that such preferences were to be allowed only in clearly defined circumstances. They had to be tightly linked to specified racial wrongs, not just generalized claims about racism; they had to be the least intrusive way of accomplishing the desired result; and they had to be a matter of compelling interest to the government. Unless these conditions of “strict scrutiny” were met, preferences would be barred.
In Katznelson's reading, these conditions are, in fact, readily satisfied by the history he has recounted. Irrational and indefensible discrimination against blacks during the Roosevelt and Truman administrations “constituted a massive transfer of privileges to white Americans.” Once this record, hitherto totally ignored in debates on affirmative action, is brought to the fore and linked with Powell's logic (itself now a matter of “settled law”), the case for broad-based preferences becomes, he says, logically irresistible.
Katznelson is at his best in the historical sections of this book, which will strike many readers as revelatory. But even there, much can be questioned. It seems wildly unrealistic, for example, to assume as Katznelson does that only Jim Crow intervention by Southern politicians in the 30's prevented maids and farm workers from being organized into unions. Seven decades and a civil-rights revolution later, the country's maids are still getting by without union contracts, as are most of the South's farm workers.
It is also hard to take seriously the book's repeated laments over FDR's decision to stick with a segregated military during World War II. The administration's policy did inarguably reduce blacks' opportunities to acquire new skills, and the integration of the armed forces was plainly required on any long-run calculation of the national interest. But to impose such an explosive social policy in the midst of a world war would have been madness.
In his concluding chapter, Katz-nelson labors to convince the reader that his basic case—affirmative action is justified because the disadvantaging of blacks in the Roosevelt and Truman years satisfies Powell's “strict-scrutiny” test—is a simple syllogism. But it can also be read as a simple non sequitur.
The problems begin with Powell's standards. After more than a quarter-century of debate over those standards, nobody really knows when it is and when it is not permissible to “take race into account.” The message cumulatively conveyed by dozens of court decisions is that Powell's principles are but a starting point for judicial reasoning. The two 2003 Michigan cases alone generated thirteen different Supreme Court opinions, every one of them presumably consistent with Powell's standards.
A related problem is the considerable amount of time that has elapsed between the grievances Katznelson cites and the future remedy he proposes. How, in particular, are specific injuries to identifiable victims today to be traced back to the 1930's and 40's? In describing the workings of this and other features of his program—an exercise relegated to the book's final three pages—Katznelson becomes noticeably blurry.
One possibility, he suggests, would be grants to individuals whose parents or grandparents were harmed. A “less administratively burdensome” possibility would be “assertive federal policies” designed to help those “poor Americans who face conditions produced by the constellation of patterns of eligibility and administration the South placed inside the most important New Deal and Fair Deal programs.” “Constellation of patterns”? This seems a long way from specificity.
Toward the end of his book, Katz-nelson bemoans the fact that opponents of affirmative action have come to occupy the moral high ground. One reason for this, he observes, is that up until now the arguments made on behalf of the policy have been weak and inadequate. He adds:
Perhaps because proponents of affirmative action have been unable to persuade most white Americans that it is a good idea, they have relied mainly on decisions in executive agencies and the courts, usually skipping the effort to win broad support either in public opinion or Congress.
There is a lot of truth in this, but it is not the whole truth. The fact is that at critical junctures, supporters of affirmative action have been extraordinarily lucky. Twice it appeared that a deeply divided Supreme Court was poised to reject the policy as inconsistent with a Constitution providing individual rights and disallowing group rights. And twice—with Bakke in 1978 and again with the Michigan law-school case in 2003—supporters of racial preferences found a nominally conservative swing voter on the Court with a rationale for splitting the difference and for opening the door to racial quotas. The first time it was Powell, the second time it was the now-retiring Sandra Day O'Connor.
The new Supreme Court is likely to be less sharply divided. If so, affirmative action might actually start to be an interesting subject once again.
1 See Carl Cohen, “Winks, Nods, Disguises—and Racial Preference,” COMMENTARY, September 2003.