I believe the current debate over an African-American female nominee to the Supreme Court to be another iteration of the larger affirmative action debate.
The Online Legal Dictionary Wex defines affirmative action as, “A set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future.”
Affirmative action (AA) was first created as a result of an executive order by President Kennedy in 1961, which mandated, among other things, “employees are treated… without regard to their race, creed, color, or national origin” (Executive Order 10925). The value of AA has been questioned since its inception in just about every arena that it touches, education and employment; and, AA has been a thorny issue because it serves as a reminder and bulwark against our racially-segregated history.
Affirmative action goes beyond just acknowledging the harm racism in past legislation has done. It “serves” as a “remedy” to “prevent such discrimination in the future.” Yet, this fall, affirmative action as we know it may no longer exist. This fall the Supreme Court will answer whether the colleges, UNC-Chapel Hill and Harvard, may continue to use race in consideration for admissions.
Claims of “reverse racism” are becoming fairly common today as federally funded universities and institutions find themselves caught between diversity, inclusion and equity driven missions and increased competition in a global talent market. The suit against UNC and Harvard mirrors similar past lawsuits brought by Caucasian plaintiffs against the University of Michigan and the University of Texas systems in which the courts upheld affirmative action.
Here, in New Hampshire, affirmative action affords opportunity to the rapidly diversifying population that when seeking employment, they are “free from discrimination” and the educational institutes they attend are focused on their mission to “prevent such discrimination in the future.”
Some have argued that we have moved past racial discrimination and there are no need for categories and distinctions of race. They point to the Civil Rights movement, they use Martin Luther King Jr.’s words from his speech in Washington, “judged not by the color of their skin, but by the content of their character,” (I Have a Dream). To be honest, I grow weary of being Black in America sometimes, too.
Yet, as we approach the end of February, and Black History Month, race seemingly is what everyone is afraid to talk about. As part of the budget process, New Hampshire’s “Freedom from Discrimination in Public Workplaces and Education” bill passed, muzzling effective discussions on race in classrooms and infringing on academic liberties despite Sununu’s pledge saying, “nothing in this language prevents schools from teaching any aspect of American history, such as teaching about racism, sexism, or slavery – it simply ensures that [White] children will not be discriminated against on the basis of race, gender, sexual identity, or religion.”
According to the governor’s logic and the crafters of this bill, the language of AA is being used to protect “whiteness.”
“State lawmakers hoped to address conversations or lessons about ‘White privilege and White supremacy’ particularly those that suggest, both historically and today, White Americans enjoy advantages even if they do not feel privileged,” (The Washington Post,12/13/21). These legislative acts make sure that race remains a discriminating factor. The only change is that “affirmative action,” historically used to prevent minorities from discrimination, will be misinterpreted to affirm the persistence of “White supremacy” and “White privilege” instead of “remedy” them as intended.
This writer believes it’s simply wrong for a fundamental tenet of civil rights — the government’s responsibility for “protection from discrimination”— to be abused by civil rights opponents, with supposedly same intent, “prevention from discrimination,” to undermine, destroy, weaken and undo what has been affirmative action, along with its heroes, its beneficiaries and its legacies.
(Ben Bacote teaches at Waterville Valley Academy.)