Equal Opportunity Lives On in the Public Square: A Former Practitioner Explains
How do you take a good thing that’s been declared dead — and make it viable again?
Ever since the Supreme Court declared affirmative action in universities unconstitutional — specifically, race-based consideration in admissions — lamentation is heard all across the Left. Lamentation’s categorical conclusion? That affirmative action is dead and beyond resuscitation and that historic advances in representation, in race and sex, not only in universities but generally in American life, now stand to be reversed.
But enough with lamentation. On with resuscitation and repair. How do you take a good thing declared dead and make it viable again?
You do it, I believe, in two ways: One, by changing the debate’s terms and framing, and, two, by making the moral argument for your good thing’s inherent rightness — its value.
I speak as a former practitioner of affirmative action, from its earliest days. Present at the Creation, I saw (and amended where I could) various flaws in the practice, which flaws have, over time, resulted in its seeming undoing.
My bio: I was an Equal Opportunity Officer for a major American city, San Diego, from 1977 to 1980, the period when affirmative action became factored into the way the nation did business. Finally: America would endeavor, per the Civil Rights Act of 1964 and various court rulings, to reform the injustices of past racial and sexual discrimination and reshape our institutions and workplaces to better reflect the diverse richness of the citizenry. Sign me up for this crusade! Just prior, I had cut my teeth at the Brookings Institution, where, as an organizer of the Women’s Caucus (minorities were also represented), I made myself useful to the administration by drafting this new thing called an “affirmative action plan.”
Immediately, I saw a problem: “Affirmative action” — as a term, for many if not for most people — means “preferential treatment.” And preferential treatment flies in the face of a cherished American ideal, an ideal never achieved but broadly saluted, of equality and fair play. On the other hand: “Equal opportunity,” as I soon found, chimes exactly with those cherished ideals. After all, who really can be against equal opportunity? Thus I always put myself forth as an advocate of equal opportunity, not of affirmative action.
But the Left failed to control the definition, and the reactionary Right, leaping into the void, bashed the policy non-stop. Thus manipulated, affirmative action’s alleged “preferential treatment” soon begot preferential treatment for “unqualified” women and minorities, versus “qualified” white males. In practice, the women and minorities I advocated for were “qualified” on the basis of merit (more than), because to put in place anyone unqualified was the fastest way to kill the program. But the reactionary Right grabbed the “merit” versus sex or skin color argument and never let up. The policy was in jeopardy from the start.
Likewise, back during Creation, I saw another problem: “goals” versus “quotas.” Goals entail a “good-faith effort” to recruit and hire women and minorities to meet a hoped-for number. If a hiring authority can show every effort at recruitment came up short — i.e., reaching out to women or minority caucuses of professional associations, without result — then “good-faith effort” is satisfied and there is no penalty. Better luck next round.
But again, the Left failed to control definitions: Quicker than you can say “quota,” the Right hijacked good-faith goals and manipulated them into hard-and-fast, compulsory quotas which must be met or else, and if a “qualified” white male were denied or turned out, so be it. The Right doesn’t do nuance, but the Left doesn’t do battle very well, either.
Which is a shame, because equal opportunity pursued via goals, not quotas, could lead to solid gains. As I personally experienced:
At Brookings, we opened up the recruitment process — beyond “Who’s your bright young man this year?” — enabling the first women and minority PhDs onto the renowned research staff. At San Diego, we moved women and minorities into the nontraditional jobs — police, firefighter, sanitation driver, equipment operator, apprentice. To protect “my” hires, I drafted one of the nation’s first municipal policies prohibiting sexual harassment on the job. For a workforce of 7,000, we had remarkably few problems (I was constantly in the field, seeing to any concerns) and, out recruiting in the city at large by pointing to our high-performing hires, we easily met our annual goals-not-quotas. (Nearly 50 years later, I still remember the names of “my” women and minorities.)
But: Nationwide, the record was more problematic. And now, with the Supreme Court overturning affirmative action, and last year overturning abortion rights — two big wins turbo-charging the reactionary Right in its crusade to undo as many hard-won civil rights as possible — a new, more potent approach is needed to rescue the aforementioned “good thing”: the Golden Mean on race and sex.
But what? And how?
These things called affirmative action plans, designed to correct race and sex imbalance in a workforce, may very well be, with this bombshell Court decision, history. I confess I had a major sinking spell when I realized that my usual response — rallying the troops to build a better plan, one with a name change (equal opportunity) and delivered via goals not quotas — was now mugged by reality: Affirmative action plans, just delcared un-Constitutional in universities, may now be kaput across American life.
Enlightened organizations, those already making fullest use of their workforces, whether governmental or corporate or cultural, no doubt already operate by an equal-opportunity model — which is why they are enlightened — and will continue to do so. The new practice of diversity, equity, and inclusion (DEI) plans, adopted voluntarily, is emerging across a spectrum of organizations, but their legal standing is not clear. One can’t help thinking that the old institutional mechanism — the affirmative action plan, enforced by The Law — now vanished into thin air, was something truly valuable. Now truly to be lamented….
And then it hit: Take the cause to the public square.
Because if The Law, aka the Supreme Court, no longer protects race and sex equity — equity being ipso facto a good thing — then the Public Square is where we take the argument.
But not — repeat: not — for the sake of more argument: more noise, more vitriol, more combat, more chaos.
No: We take it to the Public Square for the sake of moral argument.
The only argument that can possibly pierce through the noise, vitriol, etc. of what passes for the “public square” at this far-gone moment is the moral one. That is, that which bears on the rightness and the wrongness of things; in sum, the ultimate argument. Because: There are so many things, a superabundance, with the Right’s arguments — on race and sex equity and much else — that are wrong, wrong, wrong, and it is high time to say so.
Starting with…: the premise of Chief Justice John Roberts’ opinion, in this instigating instance on affirmative action and in the Court’s 2013 ruling gutting voting rights. Which premise in both instances is: that racism and sexism have been conquered; that racism and sexism are things of a distant past; and that, being conquered and past, legal remedies are no longer required — i.e., affirmative action plans and, re voting rights, pre-clearance tests that states with problematic histories had to meet before holding elections.
This premise — of racism and sexism conquered and past — is both fallacious and absurd: We’d recovered Eden and didn’t know it? Further compounding fallacy and absurdity, the Chief Justice likes to repeat this canard: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In other words, in a color-blind society, which America putatively now is, consideration of race (or sex) is moot.
But the flaw in this theory of course is: The U.S. Constitution as originally written was NOT color-blind. Brilliant as our foundational document is, still the Founding Fathers, some of whom were slaveholders, set into that foundation a fatal flaw: the infamous three-fifths clause, holding that three-fifths of the slave states’ enslaved populations, i.e., African-Americans, were to be counted for taxation and representation purposes, meanwhile effectively relegating a slave’s status to three-fifths of a human being with zero rights of citizenship. (How did the vaunted conservative Constitutional “originalists” miss this?)
Thus, contra the Chief Justice: Remedy is still needed. Because by any index — wealth, health, employment, housing, etc. — African-Americans still suffer from America’s Original Sin of slavery, and to deny this is….dishonest. The Right rightly claims that citizens living today are not responsible for slavery, but to deny, as they do, that we white Americans benefit from our original privilege is not honest. Other populations not cited in the Constitution also deserve protection. Finally, the Founding Fathers did not “remember the ladies,” per Abigail Adams: Women themselves secured the vote, and full personhood, only in 1920.
Yet: Has the Left disputed in any organized and sustained way Roberts’ fallacious and absurd premise, that racism and sexism are over? Not that I recall; it’s been crickets. Not that every member of the reactionary Right is cued by the Chief Justice, but it is the case the Right believes these sins are past. Which is — morally speaking — wrong, wrong, wrong, also dishonest.
Likewise the whole “anti-woke” business:
“Weaponize” has become the reactionary Right’s fave verb (example: liberals allegedly weaponized the Department of Justice against conservatives). But, the reactionary Right has itself pulled off a masterful weaponization: They have taken what once-upon-a-time were good things — affirmative action, equal opportunity, being (in Black culture) “awake” to injustice and inhumanity — and turned them into bad things, then slapped the meaningless “woke” tag on their alchemy, so as not to soil their hands with the racism or sexism still curdling underneath.
One rich and recent example: Vice President Kamala Harris just called out the Stop WOKE Act enacted by Florida governor and GOP presidential candidate Ron DeSantis, notably the state Board of Education’s unanimously-approved new standards for teaching Black history. The curriculum component causing particular outrage? Teaching middle-schoolers that “slaves developed skills which, in some instances, could be applied for their personal benefit.” Livid, Harris declared it “insulting” to claim “enslaved people benefited from slavery!” Pointing to slavery’s true reality of rape, torture, and forced family separation, Harris posed the core — moral — question: “How is it that anyone could suggest that in the midst of these atrocities, that there was any benefit to being subjected to this level of dehumanization?” In response, DeSantis touted the virtues of learning the blacksmithing trade(!). To which a sane Republican (one of the few), former Congressman and also presidential candidate Will Hurd, retorted: “[S]lavery wasn’t a jobs program.”
I find this exchange promising — very. Going beyond the same-old, same-old political vocabulary, this exchange gets at values: to re-establish that slavery was bad (sadly, it needs to be established again, but here we are) and to re-establish what we Americans value most, after all our history and struggle: equal opportunity. The media speak of the Right waging a culture war, but “woke” is a phony banner. As Kamala Harris endeavored to do, engaging the reactionary Right on culture in an authentic way — no to slavery, yes to equal opportunity — can be reparative, restorative. (To the Right’s objection that the study of slavery makes white children uncomfortable: Who’s the “snowflake” now?)
(While most items in the Right’s “woke” agenda are phony, some are not — and I suspect this is why liberals of the center-left, where I am, hold back. It must be said not every item in the far Left’s agenda is worth fighting for. Pronouns, anyone? And concern for the age-appropriateness of gender discussion or certain books is not censorship. I worry the Right will exploit these more controversial elements of the Left and ride back into power.)
Back to equal opportunity, the memory of.
I have been wondering what Martin Luther King, Jr. would think, with so many elements of his dream — voting rights specifically, but more generally equal opportunity and integration and dignity and respect — now under vicious assault. Dr. King of all people understood that, after historic advance, a reaction is likely, and the more dramatic that advance — the civil rights movement upended the exercise of power and a way of life — the more powerful, even violent the reaction.
Perhaps it helps to understand we are now in the depths of that reaction, with violence very near. King’s strategy to achieve his dream was genius: Appeal to Americans on the two documents they profess to love most — the Constitution and the Bible — and then challenge them to live up to the precepts of both. This strategy may serve us now in defending his dream. That the reactionary Right has hijacked both documents and distorted them to their power-seeking ends is a suitable subject for the public square. In its essence, equal opportunity is enshrined in both the Constitution (“All men are created equal”) and the Bible (All God’s children are loved). Now, to secure it.
We will also have to secure a Better Day, when the infrastructure — whatever it is called: affirmative action 2.0, equal opportunity 2.0 — can be reinstalled and implemented and, key to its success, backed with the force of The Law. And, sobering to say: With The Law now so politicized — judicial impartiality is no longer the standard — we will have to secure a Better Day for jurisprudence. (A worker driven now to sue for discrimination might see his/her case land in a court presided over by a judge subscribing to the Chief Justice’s premise that racism and sexism are things of the past, so case dismissed.) At the moment, the lookout for what until recently were called “protected classes” — women and minorities — lies in the hands of enlightened managers and boards (the Blanche DuBois strategy of relying on the kindness of strangers, not the strongest strategy).
Thus described, the outlook for equal opportunity — that level playing-field Americans profess to cherish — seems bleak. But, though bleak in outlook, the forcing-ground for that Better Day is under our feet, I believe, the tools are at hand, and so is the moment. I speak of the realm of Culture: making the moral argument, which ipso facto takes us onto cultural grounds, versus the stale and corrupted political realm. So phony and weightless are the “anti-woke” arguments of the reactionary Right, that it is futile to take on, say, the alleged benefits of slavery as a political debate. Instead, take it to the moral sphere and call it out, say it loud and strong, as wrong, wrong, wrong (and see how elevated you feel doing it).
In warfare (and, yes, this is war), best strategy is to strike at your opponent’s greatest vulnerability. There must be a German word for this; if not, how about Schwachpunkt, weak point. Our opponent’s Schwachpunkt is this vast “anti-woke” inanity, growing ever vaster and more inane, which in the 2024 presidential election will bear down on us ever harder. Talk about a target-rich environment! Fire away at these helium balloons — not with cliched political talking-points, but dare to go moral. Call out what is “wrong” and “dishonest,” while at the same time name what is “right” and “good.”
Liberals are lousy at this: We surrendered moral language long ago, we police each other for being “judgmental” or “moralistic,” we prize tolerance above all. But broadminded can become so broad, it flat-lines, with an anything-goes ethic the result. The reactionary Right must be combatted for its un-Christian and un-Constitutional program. Truly, how else to do that but with moral language and moral argument? In fighting this good fight, we will make ourselves stronger, sounder, and better liberals.
Right now, this good fight calls for many, many more recruits — liberals, moderates, Independents, and not to forget the sane Republicans — to get off the sidelines and into the arena: the public square. Cynicism has already exacted its nonparticipatory, beat-a-retreat toll. By “public square,” I mean any public space where discussion takes place — candidate forums and townhalls, civic organizations, social-media platforms (turned to useful purpose), book groups, friends’ regular meet-ups at coffee shops and barber shops, church discussion groups (leap the no-politics barrier because it is sinking us), not to overlook the actual public square. On your own, the options include letters to the editor, op-eds, or convening your own purposeful discussion group. And, everybody, get to your local school board meeting and counter the super-anti-woke Moms for Liberty. Let the Games begin anew!
All this speculation may seem extraneous and far afield to the task of rescuing equal opportunity, but it is not. At the top I asked: “How do you take a good thing that’s been declared dead — and make it viable again?” Equal opportunity is one of many “good things” in American life in desperate need of rescue and restored viability. Equality — of person and of opportunity — is bedrock to us Americans and cannot be denied forever. Other good things in American life that are hurting include: rule of law, democratic institutions and norms (notably, election integrity), truth and fact, the dignity of the individual, basic respect between citizens, the love of country, etc., etc., etc.
How to get to viability, to a Better Day? Policy is not the remedy: No one policy, no enactment in the political sphere will do. It takes instead another realm, another venue as it were, the larger encompassing one. It takes….the Culture, where our values are nurtured and grow; where, away from our stultified politics, we can better tell right from wrong, the real from the fake, the lasting from the ephemeral, the bedrock from the baloney. It is on these grounds, I submit, that the reactionary Right’s un-Constitutional and un-Christian program can be fought as a moral battle — as “wrong” and “dishonest.” And it where that battle — of values — can be won.
Let us get to it — -and make a New World.
