The Whipped-Cream Boys of Affirmative Action

Wouldn’t it be marvelous if there were some public policy by which the United States could mitigate the shameful legacy of slavery? The descendants of American slaves live shorter lives than other Americans, are less likely to have stable families, are more likely to be victims of violence, have lower incomes, less wealth, and lower levels of educational attainment.

Since Abraham Lincoln, generations of influential Americans—men and women of good will of all races and creeds—have searched out and experimented with policies to address these inequalities. Since the 1960s—after the 13th, 14th, and 15th Amendments, and the civil rights movement and voting rights legislation that sought to enforce those amendments—the right to vote, to bear arms, and the right to be treated as an equal citizen in every interaction with the federal, state, and local government is not just the law, but by and large the reality. Schools and universities are as open to the black child as to the white, and any employer or supervisor who discriminates against blacks will find himself marched to ruin before an agency tribunal or before the court.

But inequalities persist. These inequalities “of result,” as the checklist conservatives like to say, are far too serious and pervasive simply to ignore. The search for remedies continues, and will continue as long as these inequalities are painful and visible. And, notwithstanding the checklist, all Americans of good will know that that search should continue.

No good will should excuse Americans, however, from facing the uncongenial fact that, following the victory of the Civil Rights revolution, no public policy aimed at mitigating those inequalities has had a substantial positive long-run effect on the lives and welfare of the descendants of American slaves.

Welfare further strained the already weakened black family. The Philadelphia Plan that forced unions to open up apprenticeships that had previously excluded blacks helped convince the veteran members that their children had no stake in the union’s future. Affirmative action in higher education has produced diminishing roles for American-slave-descended blacks in the learned professions because of “mismatch”: the black student who could have excelled at the law schools of Pitt or Howard or the University of Alabama is admitted to Yale to sink or swim with students whose grades and preparation are dramatically superior. The black student who would have been admitted to Yale notwithstanding his or her race finds that employers and society will mark down that credential, no matter how unfairly, as cheapened by the existence of racial preferences.

The Real Beneficiaries

Why, then, for two generations have these policies persisted? Not because they work to benefit the descendants of American slaves, but because they do benefit somebody.

First, these policies benefit the army of officials who carry them out. Second, affirmative action may, as Justice Lewis Powell claimed in Bakke, provide “diversity” to benefit the non-black students who are preparing themselves for careers in a diverse and globalizing economy. But mostly, the direct beneficiaries of racial preferences in admissions and hiring are what one could call the whipped-cream boys.

Those who were schoolchildren in the antediluvian age before Mark Twain was banned will recall the whipping boy from The Prince and the Pauper. Young Prince Edward got in as many or more scrapes as any other youth of his age. But he had one extraordinary privilege: as heir apparent, His Royal Person was far too sacred to be corporally chastised. The Royal Household, as Twain depicts, included a “whipping boy,” the courtier’s son who, in the sight of the prince, took the blows that the prince deserved.

Whether Prince Edward’s whipping boy is historical truth or literary invention, affirmative action has led to the creation of whipped-cream boys: those who, though not the descendants of American slaves, benefit from racial preferences created for those descendants’ benefit. Most Black students in the Ivy League are more like Barack Obama than Clarence Thomas, children of recent African or Caribbean immigrants.

Whole categories of racial preferences have been created, for Hispanics, Pacific Islanders, and even Hasidic Jews, none of whom have a moral claim of historical injustice in America that should ground such preferences. There are gender preferences and sexual-orientation preferences, none of which would exist if they could not ride on the coat-tails of the efforts to mitigate the historic crime of American racial slavery. The latest fashion in “sanctuary” states and cities is hiring and admissions preferences for “undocumented immigrants,” who if they deserve any special treatment deserve not to be coddled but to be deported.

Justice Should Be Done

Giving such people a leg up assuages white guilt but, in the best case, it provides no true balm for the real, lasting, and pervasive scars of American slavery. In the worst case, it consumes the resources that could be used to address genuine problems and repair real injustices. The racial categories of the administrative state conceal this reality by putting together as “black” the descendants of American slaves and Nigerian immigrants who have just passed through visa control at JFK. If you can’t help the deserving, too many seem to believe, you can at least help the undeserving and thereby seem to be doing something. And for too many in our politics today, seeming is believing.

It is time and past time to send off the whipped-cream boys, those who get the cream in place of, and to some extent at the expense of, those whose fathers and mothers received the lashes. If more can be done for the descendants of American slaves, more should be done. But the last five decades have shown that, basic civil rights assured, it appears more promising, even by that criterion, to focus on policies that guarantee rights and improve lives for all American citizens.

Photo credit:  “The Freedmen’s Bureau.” A wood engraving from 1868 illustrating the Reconstruction period following the Civil War in the United States.

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About Michael S. Kochin

Michael S. Kochin is Professor Extraordinarius in the School of Political Science, Government, and International Relations at Tel Aviv University. He received his A.B. in mathematics from Harvard and his M.A. and Ph.D. in political science from the University of Chicago. He has held visiting appointments at Yale, Princeton, Toronto, Claremont McKenna College, and the Catholic University of America. He has written widely on the comparative analysis of institutions, political thought, politics and literature, and political rhetoric. With the historian Michael Taylor he has written An Independent Empire: Diplomacy & War in the Making of the United States (University of Michigan Press, 2020).

Photo: "The Freedmen's Bureau." A wood engraving from 1868 illustrating the Reconstruction period following the Civil War in the United States.