In his "Letter from a Birmingham Jail," Martin Luther King Jr.
lamented a "tragic misconception of time," namely, "the
strangely rational notion that there is something in the very
flow of time that will inevitably cure all ills." Today, Dr.
King's observation ought to serve as a cautionary note to
those who have seized upon Justice O'Connor's wishful
expectation that, "25 years from now," race-conscious
admissions policies "will no longer be necessary." Indeed,
the stark racial disparities in educational opportunity that
persist even as we approach the 50th anniversary of Brown vs.
Board of Education compel us to re-assess our societal faith
in the curative effects of time.
The conclusion of the Michigan litigation brings with it an
opportunity to replace the corrosive debate over affirmative
action with, at the very least, a twenty-five year
collaboration on the project of solving the problems that
create the need for race-conscious policies in the first
place. If, as critics claim, affirmative action is simply a
"band-aid" for deeper social ills, then continuing warfare
over this inadequate remedy should take a back seat to the
collective effort to find real and lasting solutions to racial
disparities in educational opportunity.
However, there are reasons to question whether critics of
affirmative action are the champions of educational equality
that they claim to be. One might wonder, for example, why no
serious steps were taken by successful proponents of
Proposition 209 in California and Initiative 200 in Washington
to advance educational equity in primary and secondary
schools. After all, their message to voters was that while
affirmative action did not provide the key to educational
opportunity, direct intervention in failing schools did.
Unfortunately, these "champions of equality" did not put their
money where their mouths were. The millions that could have
been spent to support fledgling efforts to equalize schools
were used instead to fund other attacks on the so-called
band-aid solutions. If the patient is indeed educational
equity, its life is slipping away while those opposed to the
band-aid fail to offer basic life support.
In the aftermath of the decision in Grutter, the continuation
of the well-funded and highly organized campaign to eliminate
diversity-based affirmative action programs will only foment
racial strife. The consequences of this assault are
particularly troubling during a time when it is clear that our
collective interests are advanced by utilizing all our
citizens' talents and focusing on what holds us together as a
nation. While the generals in this war against diversity say
they want to put this strife behind us, one suspects that
their sentiments are more akin to those of Justice Scalia, who
bemoans the endless litigation Grutter may spawn while
simultaneously dictating line and verse the litigation
strategy for attacking the decision in that case.
Fortunately, opponents of affirmative action do not represent
a monolith. Justice O'Connor, surely not a liberal on this
matter, pointed the way forward by parting company with those
who seem intent to inflame racial resentment rather than focus
energies on the common goals laid out in Brown. Conservatives
similarly concerned about our society's future should follow
her lead and set out their own agenda.
Achieving the goal set forth by Justice O'Connor is no small
undertaking. Setting goals is easy; serious soul searching
about our willingness to bear the cost of equalizing
educational opportunity is far more challenging. A declaration
of détente would enable the infrastructure that conservatives
have built to wage the war on affirmative action - the think
tanks, law firms, and foundations - to be retrofitted to
attack instead the underlying inequalities. Indeed, what
better target exists than the education juggernaut itself,
which provides such differential rewards and burdens to
different races, classes, and regions? For that matter, why
not broaden the attack to include unwarranted reliance on
measures of merit which hinge a lifetime of opportunities on
dubious standardized exams, undervaluing the potential of
millions of whites as well as people of color?
Justice O'Connor's aspiration was not an invitation to wait
for racial equity to develop in the by and by. As King has
taught us, "time itself is neutral; it can be used either
destructively or constructively." We should also decline
Justice Scalia's de facto invitation to endless litigation.
The resources that might be tapped to reverse this modest
decision will be far better directed at the significantly more
pressing problem of securing real educational opportunity in
Kimberle Williams Crenshaw is Professor of law at Columbia and UCLA law schools, and co-founder of the African American Policy Forum (www.aapf.org). She writes and teaches on anti-discrimination law, social justice, and race and gender equality.