Editor's note: Gloria J. Browne-Marshall, an Associate Professor of Constitutional Law at John Jay College (CUNY), is the author of "Race, Law, and American Society: 1607 to Present" and the "U.S. Constitution: An African-American Context." The Founder/Director of The Law and Policy Group, Inc., she is a former civil rights attorney, and a freelance correspondent covering the U.S. Supreme Court.
By Gloria J. Browne-Marshall, Special to CNN
(CNN) –I was born into a country with immense opportunity and a deep history of racism.
Jennifer Gratz, the plaintiff in Michigan’s “reverse discrimination” case, and other opponents of affirmative action inherited this conflicted state of affairs as well. Yet, they want the great weight of America’s racial legacy to fall only on the shoulders of people of color. This inheritance belongs to all of us.
In the fall, the U.S. Supreme Court will hear the case of Abigail Fisher v. University of Texas. Then, the Court may deem affirmative action in higher education as unconstitutional, thus locking generations of people of color into an inherited inequality. In its present eviscerated state, affirmative action may be a mere bandage on the festering wound of American racism. It is neither a panacea nor a cure-all. However, for now, it is quite necessary.
Challengers of affirmative action focus on the last thirty years of alleged inequality. Unfortunately, for all of us, the seeds of racial injustice were planted centuries ago. Africans were part of the Jamestown Colony before the landing of the Mayflower. Anthony and Mary Johnson, a married African couple, with servants and land, resided in that Virginia colony in the 1600s. Before the century ended, laws were enacted to take their land and create chattel slavery. This is American history. For nearly 300 years, legal inequality subjugated people of color who lived, loved, hoped, and died praying for justice.
When slavery ended due to the efforts of Black and White abolitionists, the 14th Amendment was ratified. The 14th Amendment gave citizenship and equal protection to African-Americans whom the U.S. Supreme Court had previously designated under the Dred Scott decision as non-persons, outside the protection of American laws. The backlash was immediate. African-Americans became the object of terrorism unprecedented in American history. This malevolence by law and tradition would continue for 100 years, assuring every inch of progress would be hard fought and uncertain. Despite Black Codes designed to re-enslave African-Americans and Jim Crow segregation, the quest for equality under law remained the battle cry of people of color.
For one shining moment, equality under law appeared to be more than an American dream. Decades of protest, during which lives and livelihoods were lost, resulted in the 1964 Civil Rights Act, signed into law by President Lyndon B. Johnson, a Democrat from Texas. Johnson, who knew well the depths of racism in America, signed Executive Order 11246, creating a policy referred to as “affirmative action,” in September of 1965. However, it was a Republican, Richard Nixon, from California, who in 1969, began the Philadelphia Plan, an affirmative action initiative in employment.
Less than fifteen years after the Civil Rights Act, while I was being bused to desegregate a recalcitrant public school district, attacks on affirmative action began. In 1978, Allan Bakke, a White medical school applicant, brought the first "reverse discrimination" case successfully challenging the affirmative action program at the University of California-Davis. Ironically, the 14th Amendment was used to defend his rights and narrow affirmative action for people of color. Affirmative action was considered an unconstitutional impediment to White competition for college admissions and jobs. Yet discrimination against people of color had never ended. Their ability to compete remained impeded.
Even today, millions of dollars in a legal settlement by Bank of America for discrimination in lending, disparate treatment in criminal justice, a federal judge’s racist email, evidence the deep-seeded nature of racial prejudice. Certain opponents of affirmative action predict a violent backlash by whites if President Obama does not end all affirmative action policies. Preventing violence by whites was the rationale behind “separate but equal” doctrine. Once again, America’s racial past haunts our present. Racism was never torn up root and branch as directed by the Court in Brown v. Board of Education.
I’ve been an advocate for justice as well as a target of racial injustice. I understand the quandary of affirmative action. But, to blindly dismantle affirmative action would further perpetuate inequality.
America, like other nations, has a flaw in its societal fabric. In other countries, it may be religion, class, caste, color – here it is race. It is an American plight.
Ending affirmative action after only thirty years ignores the vestiges of the last 300 years. As Justice Sandra Day O'Connor explained in Adarand v. Pena, the "unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it."
The opinions expressed in this commentary are solely those of Gloria J. Browne-Marshall.
CNN–can you please stop using this photo of me and my friends? Thanks.
The One on the Right Grimacing
I understand why people, who I assume are not benefitting from AA, think that they owe this generation of blacks in particular anything. Its true, you guys did not enslave people. However, in this country people were enslaved and treated unfairly, and when the time came for slaves to become citizens and slavery was abolished, blacks still were not treated fairly. If you disagree just google the Civil Rights Movement. So although slavery is long gone, blacks were still subordinated under whites. This subordination and unfairness is why most blacks (yes, that is a generalization, but for the sake of the argument....) live in poorer and less fortunate neighborhoods, aka the ghetto. Is economic standing an excuse not to work hard and achieve based on merit? No! But people of poorer neighborhoods do not go to private schools but attend public schools; public schools of poorer neighborhoods are not going to be as good as those in the wealthier neighborhoods, where the whites presumably go (another generalization). Therefore, it is fair to say that blacks receive a lesser education than whites most of the time. So on standardized tests they are going to get lesser results which ultimately effects college admission. Kids from poorer neighborhoods may not get the extra-curriculers like the ones in wealthier neighborhoods. Does this seem like a level playing field for college admission. No. That is why we have AA: to make sure that people of all backgrounds have equal opportunity.
Although I do support AA, having done some reading, I found that at prestigious universities the majority of blacks that benefitted from AA were not of slave descent; they were the progeny of immigrants from the Caribbean or from Africa. THAT IS NOT WHO AA WAS INTENDED FOR! Studies show that immigrants from Africa are some of the most educated people in America, and the studies showed that they live in affluent neighborhoods.
AA is flawed, as I articulated so in the above paragraph, but the pros outweigh the cons. So that I am not accused of being biased, I am black but am the offspring of immigrants. I am not related to anyone who had been enslaved in America. I do not think that AA should be extended for my benefit nor do I think that AA should be used as a crutch. The people who say that AA is not fair or relevant to present day are not looking at the big picture. At first glance AA is not fair, and I understand that, but some of the comments on here are offensive.
It is for the Supreme Court of the USA to decide, not Gloria J. Browne-Marshall. LOL
Yes but rather then putting white people at a disadvantage with affirnative action could we not simply make room at the table for everyone? White people don't feel like they are allowed to play at the table because someone they never knew years ago did bad things to people of color. Of course my ancestors came from Poland before and during World War II and if any people in history have a gripe it would be them. So you have to punish all white American's to make up for past problems.
Affirmative Action was dreamed by a bunch of white goverments nimrods in order to save their jobs. Hire black guy they look good. Hire black woman 2 birds with one stone and a bonus if she's a lesbian. Also I wonder if people relaize that affirmative action is illegal in all the progressive liberal nations of Europe.
Your comment shows that what they say about Polish are right. You could use some affirmative action yourself.
This issue has evolved in my life time and I expect that having a black president is an achievement my generation can be poud of...a defining sign that this country is moving forward even if it feels like at a snails pace...some white people use this issue as a gimmick to stir up in bedded emotions but most of us can see through that ....I people you don't like the make their living from the drama of it ....rush is a perfect example.
You can't have it both ways. If you want to believe that whites and blacks should live together equally in a post-racial USA, then you don't have a case for affirmative action. Which is it? Do you want some advantage points because you're black or do you want to feel like you're the same as everybody else living life on your own merits?
It's not wanting to have it both ways. It's acknowledging that you are where you are because and only because of the sins of your father, ergo you have been given the greater advantage. It's not saying its your fault that you have that advantage, its acknowledging the advantage and how you got it. AA seeks equity in your ill-gotten gain.
I understand your logic...disagree, but understand. So what about the people who came to this country and never owned slaves? Many families, including my own, had immigrant grand or great, great, great grandparents who came to this country and worked their tails off with no "free labor". Neither my, nor my great, great grandfather’s advantages were ever an "ill gotten gain", we worked hard for them. But because I'm Scottish American, I have to pay someone back. Forget it. My family never owned slave, so I don't owe anyone jack!!! And I’ll be damned if I’m giving someone else my job because of the color of their skin.
I actually have no problem with Affirmative Action for Black Americans who can trace their family back to slaves in this Country. I however have a problem with a person whose parents are from Brazil or Peru using Affimative Action.
j1. Why should someone be punished for something that they had no control over?
2. Why should those punishments extend to people who are completely unrelated to what happened?
3. Why should other people completely unrelated be able to reap the benefits?
To give an example, if, in Florida, my grandfather tortured and killed your grandfather, should I be punished for being related to my grandfather?
Should some random person in Alaska also be punished for what my grandfather did?
Should someone in California get the same benefits that your family gets in reparations from my family?
II am a second generation Italian American and this is wrong. You shouldn't punish those who are not responsible, and you should only assist those whose families were wronged.
Opportunity is more about education than it is about rights.
A child of any family that stays in school, achieves good grades and shows a positive outlook in general has opportunities to continue their education and are much more likely to achieve financial and positional success in the US than peers who do not.
The history of the US is all about those who have overcome to achieve greatness. These are our heroes. We do not care as much for the achievements of those with a privileged life.
Currently the people who are benefiting the most from Affirmative Act are Latinos. Many of them are new to this Country and may even be white.
The whole problem with affirmative action is that it exists! That's what this lady needs to figure out. In order for discrimination to end, race needs to become a non-issue. Completely a non-issue. And how do we do that? Like Dahlia and Steve have said, we have to base decisions on merit, and merit alone. And that needs to be enforced by law. But you can't use the law to pick winners and losers, that's not it's function. Laws are there to ensure EQUAL opportunity; affirmative action ensures greater opportunity for a selcet few, and LESS opportunity for the rest.
What this country needs is true equal opportunity laws. True protections for the merit based system. Picking a black candidate who isn't as qualified as a white one is just as racist as if we were to do it the other way round, but our author can't seem to wrap her head around that part.
So you ask, "Can we ever eliminate racism in this country?" and I answer "Sure!" But it's going to require a change in our culture, and for people like Ms. Browne-Marshall to quit tooting the "You discriminated against my grandfather, so I get to discriminate against you" horn. Ending affirmative action would rip the platform out from under that argument, and would be the best first step toward eliminating discrimination. It won't fix everything. But it'll help.
That being said, you also cannot legislate personal opinion. It's a first amendment thing. There will always be discriminatory people, and they will come in all shapes, sizes, and colors. Am I promoting discrimination? No. BUT. I recognize people's 1st amendment right to hold whatever views they want. So if we want to eliminate racism, we CAN'T do it by legislation alone. Legislation can kick racism out of the work place, but to kick it out of this country, we need to win hearts and minds, not just votes.
May God bless you, and help us all to keep our hearts and minds open.
In a few words – "get over yourself". What happened in the past is the past, but the continuing demands for equality when it's not earned is absurd.
American law and American justice are quite different.
This is the problem with affirmative action supporters. The literally think that there are only black and white people in America which would be so funny if not pathetic.
How does the Professor justify Asian-Americans being hurt by the affirmative action process when applying to college? What did they ever do to blacks? On wait, she can't so she ignores the real world we live in today.
I can't believe there is only 5 posts.
I find this article promotes racism toward Caucasians more than it scolds the existence of racism in general. What is more disturbing is that someone with such narrow vision and vengefulness of character actually acquired a doctorate degree and is viewed upon as an expert in her field. Racism is not limited to minorities. Minority citizens can and do exhibit equally as much, if not more, race-based hatred as Caucasian citizens. Why not award employment based upon credentials/qualifications? I've not yet read an employment position description that requires a specific race as one of the primary qualifications to perform the job duties.
This country owes black people more than you'll ever understand starting with three centuries of free labor.
I think it's you who doesn't understand. This country owes black people three hundred years of free labor? Really? Did I enslave you, take advantage of your life and time? Didn't think so. Have you ever been a slave? Didn't think so either. So quit demanding punishment for a crime neither of us had anything to do with.
Let me tell you, if those former slaves were still alive today, I'd do work for them, I'd do it gladly and often, and that WOULD be fair, they would've earned it. Today's blacks? Not so much. I owe them nothing. Respect, you say? Earn it. I have a lot of respect for hard working people, period. Even if they're purple. But people like you, who just demand free labor from me because I got white skin and a farmer tan – who's racist now?
Honestly, you are right. But everyone who is saying she is wrong for writing this has their panties in a bunch. You will never feel discrimination upon you if you are in a country based upon "white morals" that are unwilling to change. It makes no sense to be debating as to wether or not she right right for bringing up the past. The truth stands today that racism still exists wether we like it or not. If you arent racist then there should not be an arguement about this issue. Correct?
If you aren't racist, but people assume you are because you're white, I think it's perfectly fair to make an argument in defense.
So while I guess I might have overreacted, it's because I work my tail off doing digging trenches and knocking down trees, then Uncle Sam takes my money and puts it into these AA programs for free riders, who then promptly turn around and demand more help, more programs, free labor. That's insulting. They're already getting a free ride on my wallet, they need to be happy with that and shut the f*** up about me owing them anything. If anything, they owe me.
But to answer your last question, yes, racism does still exist, and it will for as long as people come in different colors. But rather than demanding punishment and special treatment, wouldn't it make more sense for both sides to move on with their lives? That's why I disagree with this article – all it does is provide more excuses for people to argue like this. Equal rights under the law now exist in full, at least as far as race is concerned. It's time to move on. We'll never get anywhere until people quit living in the past.
So, it took a professor, a book and an organization to come up with the revelation that racism exsists? Wow.
Ms. Browne-Marshall, in writing her opinion piece, continues to create a wedge between people of different races. Yes, black people (and no, not all are of African descent), have suffered tremendously in the past. But so have numerous other groups of individuals at different times. If we continue to state that past wrongs must be corrected through moving the pendulum as far in the opposite direction, all we do is create further racial inequalities. When we look at statistics showing how students of different race fare in school, we leave out a monumental influence – their parents. People are so quick to state that blacks and whites aren't afforded the same opportunities, and while this is true, it is a mirror image of what truly happens. When a black person with poor grades applies to a college, they are given additional consideration, based on the belief that all black people come from poor, uneducated families. If a white person, with the same grades, applied to the same school, they would quickly be rejected without second thought. But the issue at hand is that by stereotyping black people as poor and uneducated, we lessen the achievements of those that have studied, have educated themselves and have succeeded. Until people, regardless of color, ethnicity or gender are accepted based on their merits, instead of the skin color or heritage, we will continue to live in an ever dividing world.
Professor Browne-Marshall argues that racial preferences now are need to correct America's history of racial discrimination. There are two fundamental problems with this argument. First, as a matter of law, it is a complete nonstarter. The Supreme Court has rejected the notion that racial preferences can be justified by pointing to general, historical discrimination in our society. Second, they were right to do so. There is no reason to use race as a proxy for social disadvantage. Most African Americans who benefit from admissions preferences are from middle-class or upper-class backgrounds; there are plenty of whites and Asians who are poor. What difference does it make if a student asserts that his disadvantage can be traced to his ancestors' suffering under Jim Crow rather than the fact that his ancestors were fleeing a tyrannical regime or grew up in Appalachia or some other cause?