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Spring 2001
Volume 00, Number 2

Newsletter on Philosophy and the Black Experience

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"Where Do We Go From Here?" Legacies Of Dr. Martin Luther King, Jr., and the Role of "Colorblindness" In American Law And Public Policy Today

Steven A. Light
Department of Political Science and Public Administration
University of North Dakota

steven_light@und.nodak.edu

Introduction

Thirty-three years ago, the Reverend Dr. Martin Luther King, Jr., galvanizing force in the Civil Rights Movement, winner of the 1964 Nobel Peace Prize, and lightning rod for southern segregationist fervor, was assassinated in Memphis, Tennessee. King's philosophy of employing nonviolent political protest in pursuit of radical, even revolutionary, social change had reconciled antithetical imperatives for as long as oppositional elements in American society could bear.

As a theologian, a political leader at the vanguard of a social movement, and ultimately, a martyr, King simultaneously embodied the roles of public intellectual and political activist, assuming the unforgiving mantle of spokesperson for a race. His modes of thought and action focused on the practicalities of leveraging the power of the state to achieve social equity and social justice for African Americans.1 One element of King's genius was his understanding that government in all of its forms - far more extensively and intimately than the discriminatory actions of individuals - sets the terms for the distribution of societal benefits and burdens for all of its citizens.2
Despite his physical absence, King very much remains alive in American political discourse. Liberals and conservatives alike consistently invoke King's words, writings, and image to buttress overt as well as oblique justifications for advocating, legislating, implementing, and adjudicating a wide range of laws and public policies bearing on the politics of race. Liberals suggest that King's advocacy of programmatic race- and class-based remediation of African American second-class citizenship lends itself to recognition of the continuing role of race in producing societal cleavages, as well as the critical necessity of deploying government power to close the gaps.3 Looking to some of the same textual evidence, conservatives draw virtually the opposite conclusion, asserting that in the absence of de jure segregation, King would advocate that standards of "colorblindness" or "race neutrality" inform law and public policy.4 Conservatives frequently cite King's infamous statement during the 1963 March on Washington that he dreamed of a nation in which his children would be judged not "by the color of their skin but by the content of their character."5 Which perspective on King's views should carry the day? Is it useful, or even appropriate, to ask, "WWKD?" ("What Would King Do?")

Whether one is celebrating King's contributions to American life on the federal holiday bearing his name, or ruminating on what might have been in the shadow of the thirty-three years following his assassination, the topic of King and his legacies spotlights an important ongoing ideological debate animating the current historical moment: the question of whether or not the principle of equal protection of the laws truly embodies a "colorblind" ideal - and if so, what would be the practical results of widespread implementation of "race-neutral" law and public policy for people of color in the near future.

Bearing these issues in mind while analyzing King's legacies, this essay examines briefly one policy arena in which proponents urge the use of "colorblindness" as the benchmark principle for determining the rationality - and constitutionality - of law and public policy: affirmative action in higher education. After assessing what King might believe about how race is lived in America today, the essay makes several modest recommendations informed by King's legacies. The essay closes by inquiring whether King's exhortations to realize "why we can't wait,"6 and to ask, "Where are we now," and "Where do we go from here?"7 are any less relevant, or imperative, today than they were more than three decades ago.

Where are We Now?

The Move Toward the Language of "Race Neutrality"

As King observed in 1967, "[I]n order to answer the question 'Where do we go from here?' …we must first honestly recognize where we are now."8 "Where we are now" includes a fundamental nationwide shift in the dialogue over racial politics toward the rhetoric of deracialization. Over the past decade it has become increasingly fashionable for scholars, policymakers, judges, and journalists to suggest that the achievement of King's vision of a society without invidious color-consciousness is hindered by the presence of race-conscious law and policy. To correct for this problem, America should shift toward erecting public policy upon a foundation of "race neutrality." From this perspective, the ultimate goal of American race relations is to build a "colorblind" society as measured against the Fourteenth Amendment's constitutional guarantee of equal protection under the law.9

In 1998, proponents of California's Proposition 209, the anti-affirmative action "Civil Rights" ballot initiative, appropriated a clip of Martin Luther King's 1963 "I Have a Dream" speech for use in television ads favoring the passage of the initiative, which eradicated race-conscious public policy.10 As one might surmise, the clip contained footage of King's infamous declaration of hope for a time when whites would judge his four children on the basis of their character, instead of their skin color. The rhetoric of "colorblindness" thus pervaded California's campaign to pass an initiative that would fundamentally alter the state government's relationship to its hugely diverse multiracial and multiethnic populations.

As this anecdote suggests, aside from his concrete legacies, King's symbolic significance is not to be overstated today. This is why it is important to examine with good faith as well as relative precision his words and deeds before appropriating them for use in current policy disputes. Based on the available evidence, is it accurate to assert that King's vision of a nation in which his children would not be judged on the basis of their skin color unequivocally indicates that he would be in favor of the end of a full range of race-conscious policies, including what conservatives label "reverse discrimination" and the "racial gerrymandering" of majority-minority electoral districts, the eradication of race-based preferences in hiring, contracting, higher education, and the like, or the reconsideration of housing subsidies and public entitlement programs, all to be replaced by "race-neutral" policies? Regardless, what might be the results of such a shift? Affirmative action in higher education represents an instructive policy arena in which "colorblind" standards rapidly are being implemented in lieu of race-conscious ones.

The Demise of Affirmative Action in Higher Education?

The existence of an intimate nexus among educational access, educational attainment, and position in the labor force is incontrovertible. For most, the process of socialization into civic life and the marketplace begins at the elementary and secondary levels of the public schools. Today, as public and institutional support for the desegregation of public school systems wanes, underwritten in part by the rubric of "race neutrality," the significance of race is on the rise when it comes to childrens' educational opportunity. Comprehensive research conducted by the Harvard University Civil Rights Project documents how the resegregation of blacks and Latinos is accelerating across the nation, in cities as well as in suburbs.11 Hypersegregated schools servicing impoverished African American and Latino populations face a desperate lack of resources, ranging from decaying infrastructures to inadequate staffing to out-of-date textbooks, as well as an expanding "digital divide" created by a lack of access to computers and the Internet.12

Educational attainment is a hallmark of an industrially and technologically advanced and economically competitive society. The mood among policymakers appears to reflect a growing distaste for affirmative action programs that create educational opportunities for people of color within colleges and universities. "Race-neutral" administrative decisions and jurisprudence are spreading, particularly in states with the highest proportions of citizens of color. In 1995, the University of California Board of Regents voted to ban the use of race during the admissions process, and the number of applicants as well as enrolled students of color promptly plummeted.13 In 1996, a federal appeals court overturned the University of Texas Law School's affirmative action policies, holding that diversity goals failed to meet the constitutional burdens of equal protection jurisprudence.14 Hopwood immediately contributed to declines in minority enrollment in the University of Texas system, particularly in professional programs in law and medicine, but the jury remains out on its long-term impacts.

Several state legislatures recently have enacted "colorblind" university admissions policies that rely on grade point average as a proxy for such other factors as test scores, racial or ethnic background, and life experience. Texas and Florida have adopted "affirmative access" programs under which the top ten and twenty percent, respectively, of graduating high school seniors are guaranteed admission to the states' public university systems. Other states are considering the adoption of such policies.15 Will "affirmative access" create new inroads for students of color to attend institutions of higher learning? Although it may be too soon to accurately predict or explain all of the outcomes, the early results under "affirmative access" programs raise new questions. In Florida, for instance, although the number of new students of color in the university system has increased, critics worry that the divide will increase between white "haves" enrolled at the state's flagship universities and African American and Latino "have-nots" matriculating at lesser institutions.16

What ought one make of the growing pressure to turn away from affirmative action in higher education? Some believe "affirmative access" initiatives exemplify the spirit of state-based experimentation, in which otherwise-lethargic government is prodded into action to deal innovatively with tough policy questions. Others think "affirmative access" programs artificially abstract race out of the totality of circumstances shaping real peoples' lives and embody the premature rejection of efficacious affirmative action programs that produce highly desirable social effects.

In what is widely acknowledged as definitive research on affirmative action in university admissions, former Princeton University President William Bowen and former Harvard University President Derek Bok published in 1998 their exhaustive nationwide study of empirical data concerning the performance, both during and after college, of black and white students admitted to academically selective colleges and universities with affirmative action admission policies. The authors conclusively demonstrate that African Americans admitted under affirmative action programs are every bit as successful in measures of academic and career performance as are their white counterparts.17 Bowen and Bok reveal how race-conscious programs lead to the admission of highly successful students of all backgrounds while at the same time promoting a more diverse and socially equitable society. Will "race-neutral" admissions policies do the same?

WWKD? (What Would King Do?)

As I've phrased it, WWKD? When assessing Martin Luther King's legacies, one ought to hesitate before appropriating King's words, spoken and written more than three decades ago, or before effectively putting new words in his mouth.18 For some, however, when it comes to issues of race, the politics of expediency sometimes overwhelm the virtues of prudence and accuracy.

For instance, one might take a second look at the setting in which proponents of California's anti-affirmative action Proposition 209 employed the clip of King's "I Have a Dream" address as a symbolic stamp of legitimacy for the state's "colorblind" ballot initiative. King biographer and historian Clayborne Carson observes that the broader context of King's words in this speech is instructive, indeed definitive. Standing before the throng of civil rights supporters in 1963, King not only spoke of the importance of not judging people on the basis of their racial characteristics, he warned that racial justice in America could only follow the "whirlwinds of revolt" as they shook "the foundations of our nation."19 The totality of King's address hardly represented a call for "race-neutral" quiescence or assimilationism. Yet in 1998, King's radical rhetoric conveniently was whitewashed for the sake of a television sound bite.

In numerous settings, King advocated that law and public policy programatically account for skin color as a matter of practical necessity; moreover, he believed that government owed African Americans far more than such relatively limited remedies as the forms of affirmative action policymakers increasingly reject today. Indeed, King proposed an economic "Negro Bill of Rights" in which the state would be philosophically and practically obligated to spearhead a massive program of downward resource redistribution to African Americans to promote social equity.20 "Race neutrality," in other words, could follow only from acute racial consciousness.
Available texts and their scholarly scrutiny over the years, as well as extensive biographical material,21 strongly indicate that it is not consistent with King's articulated philosophies on how government should approach the remediation of racial discrimination to suggest that he supported - or today would support - a "race-neutral" approach to alleviating or remedying institutionalized racial discrimination. Moreover, even assuming for the sake of argument that King, were he alive, would deem it desirable for public policymakers to pursue a "colorblind" ideal, ample empirical evidence of institutionalized racial disparities and discrimination strongly indicates that it is neither practically feasible nor desirable to abandon race-conscious law and public policy for the foreseeable future.22

Where Do We Go From Here? Learning From King's Legacies

Three Modest Recommendations

African-American scholar and NAACP founder W. E. B. Du Bois once presciently asserted that "the problem of the twentieth century will be the problem of the color line."23 Through heroic efforts, much changed for the better over the last century; nonetheless, eminent historian John Hope Franklin argues that "the problem of the twenty-first century will be the problem of the color line. . . . By any standard of measurement or evaluation the problem has not been solved in the twentieth century, and thus becomes a part of the legacy and burden of the next century."24 Can "colorblind" law and policy solve for the remaining political, economic, and social disparities between whites and people of color? The wide chasm separating theoretical assertions and empirical realities suggests that it cannot yet be so. To revisit Dr. King's question, "Where do we go from here?" What follows are three modest recommendations:

First, regardless of ideological stripe, supporters of equality should acknowledge that "[w]hen it comes to race, America has a habit of claiming victories it hasn't earned."25 Suppressing collective knee-jerk denial of the continuing significance of race would promote realistic assessment of the victories that have been won as well as the battles that have yet to be fought. The unfortunate paradox persists today that "race-based organizing remains necessary to dismantle institutional racism."26 Responses to the questions, "Where we are now?" and "Where do we go from here?" should incorporate honest recognition and scholarly examination of the role of race in determining how people of color are situated in the real world. Countless studies demonstrate the existence of active racial and ethnic prejudice, as well as the institutionalized legacies of a systematic regime of white supremacy that imposes disproportionate political, economic, and social burdens upon people of color.27

Second, those same supporters of social equity should neither cede the high ground on racial politics nor take the low road to undermine race-conscious policies. On the high ground, for instance, in many settings, diversity remains a legitimate state rationale for affirmative action programs intended to broaden America's base of well educated and productive citizens. Moreover, race-conscious hiring practices in the workplace benefit all employees. Studies find that people of color as well as white males who work for private sector companies with affirmative action programs have substantially higher incomes than do comparably situated employees at firms without such hiring practices. Significantly, however, the incomes of women and employees of color in firms with affirmative action remain dramatically lower than those of comparable white employees in the same companies.28 Race-conscious law and policy is intended to further remedy remaining disparities.

Third, as a corollary to the above recommendations, supporters of racial equality spanning the ideological spectrum should reign in their disdain for the fundamental role of the state in promoting equality. Regardless of their size or scope, government institutions propose, legislate, implement, and adjudicate law and public policy, so it must be the state's role to remedy as well as to prevent racial discrimination. This principle has animated every federal civil rights act - first change the law in order to alter behavior, and attitudinal shifts will follow, regardless of the time lag. If, however, state actors continue to prematurely enact and implement universal standards of "race neutrality," resultant law and public policy will be founded upon the current baseline of continued white privilege in political, economic, and social arenas. Aside from the deleterious impacts of institutional distancing from remedial postures, the implementation of "colorblind" law and public policy cannot help but perpetuate the preexisting, highly racialized status quo.29 Such changes clearly are regressive, rather than progressive, for all citizens.

A premature shift toward "colorblind" policy skips a fundamental step in the move toward social equity: the mitigation of economic deprivation and social stratification so that race is not regarded as a proxy in the minds of some for pathological qualities of laziness, joblessness, homelessness, apathy toward education, or criminality. Only then will color fade as viewed through the lenses of equal opportunity and equality under the law. The result will be greater democratic empowerment for all citizens. This ultimate vision of a "colorblind" society reflects the logic behind Martin Luther King's calls for government intervention in such far-reaching forms as affirmative action and a "Bill of Rights for the Disadvantaged."

Conclusion: The Road Toward Social Justice

How would Martin Luther King perceive the similarities between his world, drenched in the blood of those fighting to overcome overt racial prejudice, and the changed world he never lived to see, still permeated by institutionalized discrimination? How would he view "race neutrality" as political rhetoric? "Colorblindness" as a policy goal? Would King still argue that "[t]here are some instances when a law is just on its face and unjust in its application," as he wrote from a Birmingham, Alabama, jail cell in 1963?30 What would the answers to such questions tell us some thirty-eight years later about whether the state should attempt to legislate "colorblindness" in the face of the realities of a race-conscious society?

At the very least, we might assume that King would affirm that the use of his legacies to inform today's political discourse is important - not because it honors him per se, but rather because robust policy debate invariably furthers our travels along the winding road leading toward social justice. The path to social justice is constantly under construction, blocked by many obstacles, and without a discernible end in sight, thus requiring many twists and turns to navigate the rugged landscape of American political culture.

Because the route is contingent, it is up to us to choose what directions the road should, and will, take. Do we wish it to follow an increasingly determined trajectory, what some see as a sweeping U-turn back toward the days of "separate-but-equal" doctrine as manifested in today's rhetoric of "race-neutral" and "colorblind" public policy? Or instead, do we wish it to lead us forward, and forward, and forward, as we acknowledge the significance of race and ethnicity in American civic life such that we truly can walk hand-in-hand toward a future in which our similarities and differences are celebrated, not denied?

In addressing those committed to the struggle for civil rights in his infamous "I Have a Dream" speech, Martin Luther King exhorted, "We cannot walk alone. And as we walk, we must make the pledge that we shall always march ahead. We cannot turn back."31

It is up to us.

Endnotes

* Originally prepared for presentation at "Thirty-Two Years Later: A Nation Divided," a panel commemorating Martin Luther King, Jr., at the University of North Dakota on April 5, 2000, in Grand Forks, ND. The author thanks MC Diop, Director of Multicultural Student Services at the University of North Dakota, for providing the opportunity to speak about Dr. King, and Professor Kathryn R.L. Rand of the University of North Dakota School of Law, for her insightful comments.
1. See Steven A. Light, "Martin Luther King, Jr.," in The Encyclopedia of American Law, ed. David Schultz (New York: Peter Lang, forthcoming). King embraced one possible future founded on ideals he believed were embodied in the Constitution and the Bill of Rights.
2. Over the decades since the 1960s, this insight has become both less obvious and less widely held among citizens and public officials, and surprisingly, among political scientists - individuals who for the most part describe, explain, and predict the influence of government on, in Harold Lasswell's famous 1936 formulation, "who gets what, when, and how." See Harold Lasswell, Politics: Who Gets What, When and How (New York: McGraw-Hill, 1936). The reasons for the fundamental shift from belief in government accountability to personal and private-sector responsibility for political outcomes fall outside the scope of this essay, yet they directly implicate and impact racial politics in America.
3. See, e.g., Clayborne Carson, "King Advocated Special Programs That Went Beyond Affirmative Action," <http://www.stanford.edu/group/King/>, October 26, 1996.
4. Although there are subtle differences in meaning between the two terms, this essay follows the literature's convention by treating "colorblindness" and "race neutrality" as interchangeable concepts.
5. Martin Luther King, Jr., "I Have a Dream," (address at the March on Washington for Jobs and Freedom, August 28, 1963), <http://www.stanford.edu/group/King/>.
6. Martin Luther King, Jr., Why We Can't Wait (New York: Harper & Row, 1963).
7. Martin Luther King, Jr., Where Do We Go from Here: Chaos or Community? (Boston: Beacon, 1967).
8. Martin Luther King, Jr., "Where Do We Go From Here?" (address in Atlanta, Georgia, August 16, 1967), <http://www.stanford.edu/group/King/>.
9. As others have noted, this perspective originates in Justice Harlan's dissent in Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (discussed in T. Alexander Aleinikoff and Samuel Issacharoff, "Race and Redistricting: Drawing Constitutional Lines After Shaw v. Reno," Michigan Law Review 92 (1993), 616).
10. See Carson (quoting King, "I Have a Dream").
11. See Ellis Cose, "Our New Look: The Colors of Race," Newsweek, January 1, 2000, 30.
12. See, e.g., U.S. Department of Commerce, "Falling Through the Net: Toward Digital Inclusion," available at <http://osecnt13.osec.doc.gov/public.nsf.docs>, October 2000; see also Mark S. Jendrysik and Steven A. Light, "As the Gap Narrows, the Gap Widens: Information Diffusion and How the 'Digital Divide' Impacts African American Political Mobilization, Participation, and Efficacy," (paper presented at the Annual Meeting of the Midwest Political Science Association, April 21, 2001).
13. See Ronald Dworkin, "Affirming Affirmative Action," The New York Review of Books, October 22, 1998 (reviewing William G. Bowen and Derek C. Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (Princeton: Princeton University Press, 1998)).
14. See Hopwood v. Texas, 78 F.3d 932, 945-46 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996) ("the use of ethnic diversity simply to achieve racial heterogeneity, even as part of the consideration of a number of factors, is unconstitutional"). But see Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000) (diversity provides legitimate grounds for University of Michigan's race-conscious admissions policy).
15. For example, Pennsylvania recently considered adopting a plan augmenting a fifteen-percent threshold with continued admissions preferences for people of color. See Irvin Molotsky, "Pennsylvania Colleges Weigh Admitting Top 15% at Schools," New York Times, March 30, 2000, A12.
16. See Rick Bragg, "Minority Enrollment Rises In Florida College System," New York Times, August 30, 2000, A18.
17. See generally William G. Bowen and Derek C. Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (Princeton: Princeton University Press, 1998).
18. Thus this essay will not unequivocally assert that "King would say X, would agree with Y." Such assertions are disingenuous, at best, and reflect mal political intent, at worst.
19. See Carson (quoting King, "I Have a Dream").
20. See King, Why We Can't Wait.
21. See, e.g., Taylor Branch, Parting the Waters: America in the King Years, 1954-63 (New York: Simon & Schuster, 1988); Taylor Branch, Pillar of Fire: America in the King Years, 1963-65 (New York: Simon & Schuster, 1998).
22. See, e.g., Douglas S. Massey and Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (Cambridge: Harvard University Press, 1993) (segregation and poverty fundamentally linked); Adolph L. Reed, J., ed., Without Justice for All: The New Liberalism and Our Retreat from Racial Equality (New York: Westview, 1999) (race informs a range of policy issues); Steven A. Light and Kathryn R.L. Rand, "Is Title VI a Magic Bullet? Environmental Racism in the Context of Political-Economic Processes and Imperatives," Michigan Journal of Race and Law 2 (1996), 1-49 (environmental burdens fall on people of color); American Civil Liberties Union, "Criminal Justice," <http://www.aclu.org/issues/criminal/hmcj.html>, 2001 (racial discrimination permeates criminal justice system); Steven A. Light, "Too (Color)Blind to See: The Voting Rights Act and the Rehnquist Court," George Mason University Civil Rights Law Journal 8 (1998), 1-63 (voting rights discrimination persists throughout the South).
23. Quoted in Bowen and Bok, Preface.
24. Quoted in ibid.
25. Cose.
26. Manning Marable, "Beyond Color-Blindness," The Nation, December 14, 1998.
27. See note 22, above.
28. See Cedric Herring, "Setting the Record Straight on Affirmative Action," <http://www.scholarlyaudio.com/audiobook1/afac.html>, 1996.
29. See Light, 27-31 (discussing how the Supreme Court's voting rights jurisprudence during the 1990s employs a baseline standard of "race neutrality" perpetuating, rather than remedying, racial polarization).
30. Martin Luther King, Jr., "Letter from the Birmingham Jail," <http://www.stanford.edu/group/King/>, April 16, 1963.
31. King, "I Have a Dream."

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Spring 2001 Volume 00, Number 2

Spring 2001
Volume 00, Number 2