It is the right that is responsible for much of the attempt to elevate affirmative action to the level of high moral principle, like so many of its bogus misdirection campaigns. Ideologues have denounced affirmative action with a lofty rhetoric of “colorblind ideals” or “merit,” shifting attention away from the prosaic fact that it is a technique of antidiscrimination enforcement. Anti-egalitarians have a long history of concocting formalist “principles,” whether by advocacy or denunciation, to perfume their ugly and ultimately anti-popular political agendas.
This was at play during the good cop/bad cop choreography that Southern elected officials crafted in their campaign of “Massive Resistance” to the Brown v. Board of Education decision that outlawed school segregation. The good cops contended that they were not so much opposed to desegregation as they were concerned with defending the hallowed principle of “states’ rights.” I still recall North Carolina Senator Sam Ervin passionately playing the good-cop role, styling himself as a constitutional “strict constructionist,” which later became the basis for his rise to folk-hero status as a “country lawyer” protector of the Constitution during the Watergate hearings—not to mention his 1977 American Express commercial.
In the years since its implementation, affirmative action has been a useful instrument in the enforcement of antidiscrimination law. In the 1970s, it significantly informed efforts to open access for nonwhites and women in occupations and job categories—notably in police departments, fire departments, and air traffic control, in part because all are in the public sector—from which those groups had previously been largely excluded. Perhaps its most important victory came in the Supreme Court’s 1971 Griggs v. Duke Power ruling, which mandated that only tests related to actual job performance can be used to screen job applicants. (Those who have plowed through Richard Herrnstein and Charles Murray’s odious racist tract The Bell Curve will recall that Griggs was its main practical target.) As Dobbin shows in his book Inventing Equal Opportunity, the greatest evidence of affirmative action’s success is its routine incorporation into human resources management practices. That success also underscores its key limitation.
As an instrument of antidiscrimination enforcement, affirmative action is not equipped to address broader economic inequality, which has steadily intensified throughout American society since the 1970s across race, gender, and sexual orientation. The court’s 1978 ruling in Regents of the University of California v. Bakke shifted affirmative action’s justification from combating inequality to the pursuit of “diversity.” This provided a workaround to address the complaint that affirmative action constituted “reverse discrimination,” but an unintended effect was to obscure its inadequacy as a remedy to rising poverty and the increasing concentration of wealth.