The War of Position: This Time on Affirmative Action
In June the US Supreme Court seemingly got rid of affirmative action as a tool for pursuing racial (and sexual) equity in workplaces, public contracting and educational institutions. In Students for Fair Admissions Inc. v. President and Fellows of Harvard College the court held in a 6-3 decision that it is unconstitutional to use race as a factor in admissions policies at Harvard College and the University of North Carolina. That fateful decision was the final nail in the coffin of one of the primary ways that the intent of the Civil Rights Act of 1964 had been implemented.
In this post I want to discuss how affirmative action is contested between the opposing sides of American national identity and how the battle over it is a good example of how the “war of position” is waged in American institutions. I shall close by suggesting ways that progressives can continue to take affirmative steps to offer greater opportunity for POC in this country.
The term affirmative action was first used in the Wagner Act passed in 1935 to give workers the right to bargain collectively with management over wages and conditions of work. An article of the Act provided that “affirmative action” be taken to restore employees to their rightful status in cases where they could show they had been discriminated against on the job.
President John F. Kennedy was the first to use the term in the realm of racial discrimination. Kennedy had pledged to advance the movement for racial equality in his 1960 presidential campaign. Upon taking office he issued Executive Order 10925. It mandated “affirmative action” to eliminate discrimination in government employment and employment discrimination by businesses seeking government contracts.
In the wake of growing impatience at the pace of change even after the passage of the Civil Rights Act (1964) and Voting Rights Acts (1965) President Lyndon Johnson issued Executive Order 11246 in 1965. It beefed up Kennedy’s order by creating an Office of Contract Compliance in the Department of Labor. That office vetted businesses seeking federal contracts regarding racial discrimination in personnel policies.
By the end of the decade minoritized nationalist movements were pressing for deeper systemic changes, or alternatively, their own racialized separate systems. Institutions of higher education responded by taking affirmative action to increase POC enrollment. These policies exemplified a “liberal multiracialism” (or mainstream progressive nationalism) that “positioned” decisive initiatives to racially diversify student bodies in the name of racial equality.
In Racial Formation in the United States Omi and Winant conclude that racial conflict is “under relatively permanent political contestation” in the United States.[1] We can see this at work in terms of affirmative action. In the 1970s traditional conservative nationalists engaging in the war of position launched a vigorous attack against the policy. Conservatives initially fought the battle in the federal courts. They won a partial victory at the US Supreme Court in Bakke v. Board of Regents, University of California (1978). Affirmative action had been executed in two ways since the 1960s. Some organizations used hard policies involving racial quotas to insure that equity was achieved. Others used softer timetables or guidelines to effect the policy. In Bakke the court held that quotas were illegal, but the soft policies were okay. It also ruled that it was legal to admit larger numbers of POC students in the name of diversifying the student body in an increasingly diverse society.
A series of court cases over the decades steadily chipped away at affirmative action. And nine states banned affirmative action either through legislative action or the initiative process.[2] Traditional conservatives successfully waged the war of position in the courts, state legislatures, via people’s initiatives and in the court of public opinion to dismantle the policy. The Harvard case seems to have ended the use of this “soft progressive liberal multracialist” approach to achieving racial equity.
But it is by deploying the notion of war position that we are able to realize that racial contestation is destined to be “relatively permanent.” A Black-led progressive nationalist movement waged the war of position in the streets, the state and the institutions of civil society for racial equality from the 1930s to the 1960s. The traditional nationalist backlash to those victories occurred from the late 60s until the present.
That traditionalist thrust is not exhausted. Conservative legal activists are already filing lawsuits against corporations for attempting to diversify their workplace or provide programming explicitly for POC recipients.[3] They’re basing their argument on the notion that the constitution is “race-neutral” or “color-blind.”
The constitution that conservatives talk about can be color-blind if they wish, but the society that document is trying to preside over sees color and continues to produce life-outcomes where White people do better than POC. To not notice this, or imagine that it has not been consciously created, is to be “blind” period. While mainstream conservatism is color-blind, right populism under the mantle of Donald Trump is consciously White nationalist, i.e., White racist.
Yet alas! The war of position shall continue. Progressives, buoyed by their populist wing, are being tugged toward the argument that racism is systemic, or “structural,” and can only be reduced by conscious steps in the direction of “structural multiracialism.”[4]
Conservatives, wedded to capitalism the way they are, must be mindful of intervening in the functions of the market to enforce color-blindness on an increasingly multiracial society. "We cannot place the reasoning for (racial diversity) ... on something as subjective as the right thing to do. It has to be the smart thing to do," says Janet Stovall, global head of diversity, equity and inclusion for the NeuroLeadership Institute. Corporations are entitled to their business models. They’re in business to make money and to achieve a certain vision.[5] If their vision is to better market their goods or services to communities of color who are an increasing percentage of consumers, then they might do well to consciously employ POC to reach those consumers. And if they want racial harmony in their newly diverse workplaces DEI-type tools would seem to be appropriate.
If racial diversity enhances profitability, it’s good for American capitalism. The war of position and continuing contestation over race will remain on issues like immigration policy and policing. But perhaps most Americans (excluding White nationalist) can join progressives in a political consensus supporting a multiracial capitalism alongside a multiracial democracy!
[1] Michael Omi and Howard Winant, Racial Formation in the United States. 1st edition (1986). I no longer have this edition in my possession. I used the quote in a slide show years ago without properly citing it. The authors don’t use it in subsequent editions of the text, but I find this phrasing illuminating.
[2] Washington Governor Jay Inslee re-established affirmative action by executive order in 2022. After the Harvard decision he announced that the state would “continue advancing the cause of equity in higher education and government” https://governor.wa.gov/news/2023/inslee-statement-scotus-ruling-gutting-affirmative-action .
[3] Taylor Telford, “They Invest in Black Women --- a Lawsuit Calls it Discrimination,’ Washington Post, in Seattle Times, September 3, 2023, p. C5.
[4] See the table in my last blog on racial ideologies along the continuum from right to left in American politics. “American Nationalism, Populism and Race.” August 27, 2023, http://damanipolitics.blogspot.com/
[5] Quoted by Andrea Hsu, in “Corporate DEI Initiatives are Facing Cutbacks and Legal Attacks,” "Morning Edition," NPR, August 19, 2023.
