Jeff Sessions told the Senate Judiciary Committee 20 years ago that affirmative action irritated people (he meant white people) because it could cause them to lose opportunities “simply because of their race.” This sense of grievance lies behind the Justice Department’s recent memo seeking lawyers to investigate “race-based discrimination” in college admissions.
The congressmen from the 17 states that practiced legal segregation constituted a pivotal bloc. When Southern-led congressional committees drafted the law that created the Social Security program in 1935, they excluded maids and farmworkers, the two dominant job categories for Southern blacks and Southwestern Latinos, from the program. This denied benefits to 66 percent of African-Americans across the country, and as much as 80 percent of Southern blacks. It also disproportionately hurt Mexican-Americans.
These exclusions “reinforced the semblance of a caste system of labor in the South and Southwest,” according to a recent study by the scholar David Stoesz. “Absent a government safety net, minority workers had to work at any wage available, until they dropped.” Although the exclusions were eliminated in the 1950s, it proved difficult for these workers to catch up, since the program required at least five years of contributions before benefits could be received.
Southern legislators introduced the same job category exclusions into other New Deal laws: the Wagner Act of 1935 that helped to expand industrial unions, the Fair Labor Standards Act of 1938 that mandated a 40-hour workweek and a minimum wage that explicitly left out agricultural and domestic workers.
Representative James Wilcox, a Depression-era Florida Democrat, explained the region’s position during the Fair Labor Standards Act debate: “You cannot put the Negro and the white man on the same basis and get away with it,” he declared.
When Congress passed the G.I. Bill in 1944 to help white veterans buy homes, attend college, get job training and start business ventures, it could have done the same for blacks. But at Southern lawmakers’ insistence, local officials administered these benefits. As a result, Southern blacks were left out, except for low-level vocational training. The law accommodated segregation in higher education, created job ceilings imposed by local officials, and tolerated local banks’ unwillingness to approve federally insured mortgages or small-business loans for African-Americans and Latinos.
When the federal government aided home buyers with the National Housing Act of 1934, which insured private mortgages, it might also have warded off housing segregation and helped blacks purchase homes. Instead, it supported racist covenants and typically denied mortgages to blacks. This legacy persists. The median household wealth for white families, which consists primarily of equity in housing, stands today at $134,230, according to the Economic Policy Institute. But for African-American families, it is just $11,030.
The unsettling history of this affirmative action for whites significantly widened racial gaps in income, wealth and opportunity that continue to scar American life.
The anti-affirmative-action radicalism of the Justice Department’s memo is wrapped in misleading language of fair play. If pursued, it would once again deploy the power of government and the majesty of law to fortify rather than diminish the effects of the country’s long history of racial oppression.
The Justice Department’s document is more than historically ignorant. It mocks the mission and history of its own Civil Rights Division, which Attorney General William P. Rogers, a Republican, created in 1957 to fight Jim Crow restrictions on black voting. Since then, the division has fought school segregation, enforced fair housing law and defended voting rights. So it is surreal to imagine that its authority might be deployed to weaken or eliminate policies in higher education that increase racial diversity.
Even the George W. Bush administration sought to underscore its civil rights commitments. A Bush assistant attorney general, Wan J. Kim, extolled the division’s election monitoring and Voting Rights Act enforcement lawsuits, as well as its court cases on fair lending and fair housing.
Though President Bush spoke out in 2003 to support lawsuits against affirmative action at the University of Michigan, both he and the Justice Department’s amicus brief supported the diversity rationale that the Supreme Court eventually upheld in Grutter v. Bollinger and backed last year in Fisher v. University of Texas.
“America is a diverse country, racially, economically and ethnically,” Mr. Bush said in 2003. “And our institutions of higher education should reflect our diversity.”
What the Trump administration is considering would go well beyond attempts by the Bush White House to curtail some aspects of affirmative action. By pushing back against efforts to rectify generations of racial discrimination and exclusion in colleges, the current Justice Department seems unwilling to remain within the framework that Justice Lewis Powell articulated in 1978 in University of California v. Bakke, which was later affirmed in the Grutter and Fisher decisions. This view recognizes diversity as an appropriate and legitimate rationale for admissions policies.
Any decision to reorient the Civil Rights Division would be based on the fiction that we already possess a level playing field. Perhaps more disturbing is how such a Sessions-Trump policy would further encourage white resentment. Polls show that a near majority of Trump voters believe that actions to achieve diversity have come at the expense of whites.
Over the decades, the excluded and their allies have understood the stakes when they pushed for effective affirmative action and fought to make the social safety net available to all Americans. Properly heeded, their rallying cries would help the country’s working people across racial lines a great deal more than the race-baiting projects the Trump administration is pursuing.
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