I play poker about once a month. It's a game that's been going on more or less regularly for 20 years, and I've been a part of for about 15. We try to avoid politics, since the table is about evenly divided between progressives and conservatives, and when we talk politics, we don't play poker (most of us seem to be pretty bad at multi-tasking).
One of the regulars took a job in Ohio several years ago, but he travels a lot and so periodically is back in town when we play. He's definitely one of the conservatives, and last time he was here, he held forth on how difficult it was for white kids to get into Ohio State. Black kids, he suggested, had a much easier time, even if they came from privileged backgrounds. It was his view that affirmative action, if it was ever necessary, was certainly not needed any longer, and actually victimized white college applicants. I'll tell you how I responded in a minute, but before I do, I want to analyze this very popular conservative sentiment.
The Supreme Court has actualy expressed pretty much exactly this sentiment:
"When a man has emerged from slavery and by the aid of beneficent legislation has shaken off the inseparable concomitaants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be a special favorite of the laws."
Remember when the Court said that? You don't, actually, because that quotation is from United States v. Harris, 106 U.S. 629 (1883). The facts of the case are instructive.
Harris led an armed lynch mob into a Tennessee jail and captured four black prisoners. One of the prisoners died. The United States government brought criminal charges against Sheriff Harris and others under Section 2 of the Force Act of 1871. This act made it a crime for two or more persons to conspire for the purpose of depriving anyone of the equal protection of the laws. The Court held that The Force Act was unconstitutional. The Fourteenth Amendment only authorized Congress to take remedial steps against state action that violated the amendment. The Amendment applied only to acts of the states, not to acts of individuals.
So in spite of the terrible conditions for African Americans in the South, the Court saw no need for beneficient legislation, legislation which made Blacks, in the view of the majority, special favorites of the law.
The point, I think, is obvious. No matter what the reality, no matter what the facts are, there a lot of Americans who simply cannot or will not accept the fact that it takes more than a few years and a few laws to cancel out the effects of centuries of oppression.
One of those blind Americans is the current Chief Justice of the United States, John Roberts. In Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)Roberts said taking race into account, even for the purpose of preserving the hard-won gains of school integration in districts with a history of entrenched segregation, was unconstitutional. “The way to stop discrimination on the basis of race,” he famously declared, “is to stop discriminating on the basis of race.” (taken from an editorial in the NY Times by Linda Greenhouse)
I'm not saying that conditions in 2012 have not improved since 1883. I do think, however, that while the first enslaved Africans came to this country in 1619, it's only 47 years since the effective date of the Civil Rights Act, and the passage of the Voting Rights Act. Systemic, structural discrimination, moreover, did not disappear overnight in 1965. So before we decide, as Chief Justice Roberts and my poker buddy have, that affirmative action is a regrettable anachronism, maybe we ought to take another look at the society in which we live.
So how did I respond to my poker table colleague? I simply agreed. I told him he was exactly right to wish, as he obviously did, that he was Black and that his children were Black, because Blacks have it so much better in America than Whites. Strangely, he changed the subject.