By Kimberlé Williams Crensaw

Published by on July 10, 2003

In his "Letter from a Birmingham Jail," Martin Luther King Jr. lamented a "tragic misconception of time," namely, "the strangely rational notion that there is something in the very flow of time that will inevitably cure all ills." Today, Dr. King’s observation ought to serve as a cautionary note to those who have seized upon Justice O’Connor’s wishful expectation that "25 years from now" race-conscious admissions policies "will no longer be necessary." Indeed, the stark racial disparities in educational opportunity that persist even as we approach the 50th anniversary of Brown vs. Board of Education compel us to re-assess our societal faith in the curative effects of time.

The conclusion of the Michigan litigation brings with it an opportunity to replace the corrosive debate over affirmative action with, at the very least, a 25-year collaboration on the project of solving the problems that create the need for race-conscious policies in the first place. If, as critics claim, affirmative action is simply a "Band-Aid" for deeper social ills, then continuing warfare over this inadequate remedy should take a back seat to the collective effort to find real and lasting solutions to racial disparities in educational opportunity. However, there are reasons to question whether critics of affirmative action are the champions of educational equality that they claim to be. One might wonder, for example, why no serious steps were taken by successful proponents of Proposition 209 in California and Initiative 200 in Washington to advance educational equity in primary and secondary schools. After all, their message to voters was that while affirmative action did not provide the key to educational opportunity, direct intervention in failing schools did.

Unfortunately, these "champions of equality" did not put their money where their mouths were. The millions that could have been spent to support fledgling efforts to equalize schools were used instead to fund other attacks on the so-called Band-Aid solutions. If the patient is indeed educational equity, its life is slipping away while those opposed to the Band-Aid fail to offer basic life support. In the aftermath of the decision in Grutter, the continuation of the well-funded and highly organized campaign to eliminate diversity-based affirmative action programs will only foment racial strife. The consequences of this assault are particularly troubling during a time when it is clear that our collective interests are advanced by utilizing all our citizens’ talents and focusing on what holds us together as a nation. While the generals in this war against diversity say they want to put this strife behind us, one suspects that their sentiments are more akin to those of Justice Scalia, who bemoans the endless litigation Grutter may spawn while simultaneously dictating line and verse the litigation strategy for attacking the decision in that case.

Fortunately, opponents of affirmative action do not represent a monolith. Justice O’Connor, surely not a liberal on this matter, pointed the way forward by parting company with those who seem intent to inflame racial resentment rather than focus energies on the common goals laid out in Brown. Conservatives similarly concerned about our society’s future should follow her lead and set out their own agenda.

Achieving the goal set forth by Justice O’Connor is no small undertaking. Setting goals is easy; serious soul searching about our willingness to bear the cost of equalizing educational opportunity is far more challenging. A declaration of détente would enable the infrastructure that conservatives have built to wage the war on affirmative action — the think tanks, law firms and foundations — to be retrofitted to attack the underlying inequalities instead. Indeed, what better target exists than the education juggernaut itself, which provides such differential rewards and burdens to different races, classes and regions? For that matter, why not broaden the attack to include unwarranted reliance on measures of merit which hinge a lifetime of opportunities on dubious standardized exams, undervaluing the potential of millions of whites as well as people of color?

Justice O’Connor’s aspiration was not an invitation to wait for racial equity to develop in the by-and-by. As King has taught us, "time itself is neutral; it can be used either destructively or constructively." We should also decline Justice Scalia’s de facto invitation to endless litigation. The resources that might be tapped to reverse this modest decision will be far better directed at the significantly more pressing problem of securing real educational opportunity in this country.


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