The Need for Affirmative Action In a “Post-Racial” Society

Thanks to a 2-1 ruling from the Sixth Circuit, Michigan finally overturned its ban on affirmative ban. Ward Connerly is surely seething. I hope California is next.

Opponents of affirmative action, including Democratic Senator James Webb, contend that the practice is unfair, that it leads to preferential treatment, that it relies on quotas, and that it causes reverse discrimination. But in fact, affirmative action is one of the most effective tools for redressing the imbalances caused by our nation’s long-standing discrimination against people of color and women, and for leveling what has been an uneven field for the entirety of our nation’s existence.

But we need affirmative action more than ever. A centuries-long legacy of racist, sexist, discriminatory habits, customs and attitudes has not dissipated in the fifty years since the Civil Rights era. Avenues of opportunity for those previously excluded remain far too narrow. Despite a black President in the White House, black men are hardest hit by unemployment. Latino unemployment has reached record levels. Minority families still earn much less than white families. Workers of color are still concentrated in less well-paying, unskilled sectors. The black middle class is shrinking while the black under-class has tripled. This is not the time to abandon programs seeking to redress systemic racial and gender discrimination.

Barriers to equality also remain for women. (White) women still earn seventy seven cents to each dollar earned by men. Gender-segregation prevails in many sectors, barring women from high-wage earning opportunities. In addition, sexism and racism create a particularly difficult double burden for women of color. Those who decry affirmative action for race-based preferences and reverse discrimination should take note that such programs have actually benefited white women more than racial and ethnic minorities.

There exists widespread confusion about what constitutes affirmative action and what does not. Much of this confusion can be laid at the doorstep of the anti-affirmative action movement which has deliberately distorted the goals of this legal remedy. Affirmative action programs do not grant preferences based on race nor do they create quotas.  Affirmative action is an instrument of inclusion, designed to eliminate barriers to equal treatment. It serves as a means of bringing all Americans into society’s mainstream as equal competitors in the race of life.

As President Lyndon Johnson argued in an eloquent speech trumpeting the program, “you do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, ‘you are free to compete with all the others,’ and still justly believe you have been completely fair.” Furthermore, the argument that affirmative action is “unfair” assumes that there is a standard of fairness that has been the province of women or of people of color. Not even the most optimistic or misguided observer of our nation’s history would take that argument in good faith.

Fairness requires ending biased practices, not perpetuating them, and that includes ending the unjust advantages traditionally enjoyed by whites and white men, who are born with a racial privilege. Restructuring a discriminatory status quo to create a nondiscriminatory environment isn’t “reverse discrimination,” but it may feel that way because something is being lost: White people are losing the favoritism they so long enjoyed in a system that discriminated on the basis of color and sex.

An opinion survey shows that most Americans still support the goal of equal opportunity in employment and education. A recent Pew poll showed that while the public decries preferential treatment, 70 percent of Americans support “affirmative action programs to help blacks, women and other minorities get better jobs and education.” And according to Harvard professor Randall Kennedy, one of the biggest triumphs of liberalism is that affirmative action has survived by entrenching the rationale for diversity such that even the right-wing has some value for Clarence Thomas and Michael Steele.

In an ideal society, we certainly would not need programs like affirmative action to redress past and present discrimination. If there aren’t enough chairs in a classroom to accommodate all students, ideally, we should be able to bring in another chair. But as a society, we are certainly not there yet.

African-Americans and Latinos are said to receive undeserved special privileges, when we know that hardly a single white person would be willing to trade places with them today. In the status quo, minorities are still targeted because of the color of their skin or gender or sexual orientation. If we acknowledge the war on drugs, which disproportionately targets young men of color, the wave of anti-immigrant laws, or even the antiquated notions of gender, it is abundantly clear that the solid legal protection from discrimination is one of our only hopes for ensuring the doors of opportunity are open to all.

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“But I’m Not Racist; I Have Black Friends” – An Answer

I bet you’ve heard someone use that statement as a defense, at least once in your lifetime. Heck, “I have black friends” even made the Urban Dictionary as a phrase used to qualify racist words and behavior.

When it comes to playing the race card, there is little doubt that “I have black friends” is right up there with the Joker and a sibling to “I’m not racist but…” on most days. But ultimately, there’s been a failure on our part to communicate that racism is not merely about relationships, words or emotions. These are merely elements or tools used to entrench racism. Having racial and ethnic minority friends does not excuse racist words and behavior. Someone who uses the “I have black friends” card is misinformed and misunderstands racism as just individual acts.

In fact, racism is not merely prejudice or bigotry. It is not merely a belief or a doctrine that can be corrected by having friends who have a slightly darker skin color. Racism is discrimination backed by institutionalized power. It is systemic. Racism is an ongoing inter-related set of social processes, backed by actions and discourses, that favors a dominant group over other legally constructed minority groups.

I wonder if a racial minority accused of racism can get away with saying “I’m not racist, I have white friends!” Probably not.

So what do we do about the tea-bagger who has a black friend? We must confront individuals about their offensive words and acts in a way that forces us to also confront the system. It is probably more strategic to say “I think what you said or did was racist” rather than “you are racist.” The former focuses on actions whereas the latter targets the actor. If s/he says “I’m not racist, I have black friends,” it is easier to counter that you aren’t talking about her or his interpersonal relationships with racial and ethnic minorities. You are talking about how her or his words and actions perpetuate racism.

Photo Credit: the Italian Voice

America Flunks At Teaching Black Males

Here’s an alarming statistic for “post-racial” America: Only 47 percent of African-American men graduated from high school in the 2007-2008 school year. In fact, African-American men are far more likely to do time in the criminal justice system than graduate from college.

According to a new report, Yes We Can: The Schott 50 State Report on Public Education and Black Males 2010, American public schools are failing a majority of black males. New York City, the district with the nation’s highest enrollment of Black students, only graduates 28 percent of its Black male students with Regents diplomas on time. This is a national education crisis but it also presents a crisis for the criminal justice system.

During my visit to the District of Columbia county jail last week as part of the George Washington Law public interest program, I discovered that the correctional facility was intricately linked to the  public high schools in Southeast DC, which comprises mostly African-Americans. A significant number of indigent African-American students who attend the school district are likely to drop out of school and end up in the district jail at one time or another. Indeed, reports indicate that crime and poverty are linked in the District of Columbia.

“Taken together, the numbers in the Schott Foundation for Public Education’s report form a nightmarish picture ? one that is all the more frightening for being both true and long-standing,” said Geoffrey Canada, President and CEO of the Harlem Children’s Zone, who provided the foreword in the report. “These boys are failing, but I believe that it is the responsibility of the adults around them to turn these trajectories around. All of us must ensure that we level the playing field for the hundreds of thousands of children who are at risk of continuing the cycle of generational poverty. The key to success is education.”

High school graduation is a key indicator to success but that is unlikely without financial resources, consistent parental involvement, discipline and stability in family life. Combined with the high incarceration rates of African-American males due to mostly non-violent drug offenses, the criminal justice system is doing no favors to younger African-American minds. Visiting parents in prison sends the wrong message to young people: that they are likely to end up in prison just like their parents. Without the necessary financial and familial support, students are more likely to lack discipline, drop-out of high school, commit crimes and end up in a correctional facility much like their parents, thereby continuing the cycle of poverty and violence.

Other conditions for failure include watered-down curricula, inadequate and over-crowded facilities and lack of quality instruction, all of which could be fixed by increased investment in education.

The report does give us various policy recommendations with respect to a state like New Jersey, which has a high percentage of African-American graduation rates at 65 percent. What makes New Jersey special? According to Diverse the higher graduation rate is likely due to greater per pupil spending and instructional time that was a result of the 1981 Abbot v. Burke lawsuit, which enforced reforms to address inadequate education to students in poor urban communities across New Jersey.

Statistics play a powerful role in shaping perceptions and defining policies. Instead of dismissing the low graduation rates of black males and playing into the hands of those who buy into stereotypes on the inherent criminality of African-American men, we have to use the data to make corrective systemic changes. Following the lead of New Jersey, investing in quality education is one of the fixes that states can take to improve African-American graduation rates, which should in turn reduce their incarceration rates. Reforming the criminal justice system to reduce sentencing disparities and treat drug abuse as a medical rather than criminal problem is another way to make a positive impact.

The grim rates of high school graduation tell us that there is still substantial progress to be made in order to correct systemic racial disparities in an America that is nowhere near post-racial.

Here’s the good news: there’s currently more black men in college than in our criminal justice system.

Photo Credit: rappaportcenter

New Crack-Cocaine Sentencing Disparity, Slightly Less Racist Than Before

Between hullabaloo over attempts to repeal birthright citizenship and the latest marriage equality victory over Proposition 8, one important story got left out of the news this week. Obama signed a law enacting the most significant criminal justice reform he’s enacted while in office.

By putting his signature on S. 1789, the Fair Sentencing Act, Obama addressed one of the biggest racial injustices of America’s drug war. The bill dramatically reduces the disparity in sentences for drug possession of powder and crack cocaine and repeals mandatory minimum sentences for simple possession of crack.

For almost three decades, those arrested for crack cocaine offenses — mostly young, African-American men — have faced far harsher penalties than the white and Hispanic users of powder cocaine, despite the fact that the two drugs are essentially the same. Crack offenders faced a 10-year mandatory minimum for carrying only 10 grams of the drug, while a power-cocaine user would have to be caught with 1,000 grams to trigger the same penalty.

What created this disparity? In the 1980s, when the crack epidemic swept through inner-city communities, white voters panicked. As a result, thousands of low-level crack dealers and users — mostly African Americans — were suddenly targeted in a wave of harsh new sentencing laws. Not surprisingly, today, over 80% of those serving time for a crack cocaine offense are African-American, despite the fact that two-thirds of users are white or Hispanic. The crackdown and subsequent incarcerations of thousands of young African-American men has devastated the community in unimaginable ways.

The legislation signed by President Obama reduces the 100-to-1 sentencing disparity to a fairer 18-1, meaning a crack cocaine offender would need to carry 28 grams to trigger a five-year conviction. The remaining disparity is due to the fact that crack cocaine is associated with more violent crimes and allegedly has a higher addictive effect than power cocaine.

While Congress should have gotten rid of the disparity altogether, the new sentencing law is still a step away from the tough-on-crime mentality that has paralyzed this country for decades.

Meanwhile, the fight for fair sentencing is only half-won. President Obama must commute existing unfair sentences, while Congress needs to decide whether the new law’s provisions are applicable retroactively. If so, up to 20,000 people serving unjust crack sentences in prison could get released, pending judicial review of their cases.

One small step for Congress, one giant leap for criminal justice and racial equality in this country.