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The great victory of the civil rights movement led by Martin Luther King, Jr. was one of moral persuasion: King persuaded Americans that it was wrong and deeply unAmerican to treat people differently based on the color of their skin. That victory of moral persuasion was translated into the Civil Rights Act of 1964, the law that prohibited discrimination on the basis of race, ethnicity, or sex in employment, public accommodations, and federally funded programs (including colleges and universities).
As Professor Edward Erler has commented, "No more powerful expression of a commitment to equal opportunity can be found in the annals of modern legislation anywhere in the world."
Despite the legal mandate of equal treatment, for the past 25 years many of America's educational institutions have blatantly violated the law in the name of "affirmative action" and "diversity." In reality these terms are extremely misleading euphemisms for the practice of gross racial discrimination.
The depth of the racial discrimination practiced in the university setting is evident in the two University of Michigan cases now pending in the Supreme Court. In the undergraduate school, applicants for admission were simply sorted into different pools with lower admission standards if they identified themselves as African-American, Hispanic, or Native American, and higher standards if they identified themselves as white or members of non-preferred minority groups.
In the law school, the university rigged its standards year after year to achieve a minimum 10 percent quota of students from designated "underrepresented" minority groups (African American, Mexican American and Native American).
For years the university covered up the existence of the racial discrimination that it was practicing. Now it has chosen to defend what it cannot conceal, and it has done so in the name of "affirmative action" and "diversity."
The defense of racial preferences in the name of "affirmative action" and "diversity" has become part of contemporary civil rights orthodoxy and many purportedly sophisticated arguments have been advanced to justify them. Hillary Clinton has recently stated, in express disagreement with Martin Luther King's great 1963 speech on the Washington Mall, "If we don't take race as part of our character, then we are kidding ourselves."
However, it is the principle of equal treatment under law without regard to race that for one hundred and twenty-five years constituted the unvarying goal of antislavery crusaders and civil rights advocates. The most distinctive legal claim of the American civil rights tradition has been the principle of nondiscrimination, above all a claim for equal treatment by the government without regard to race.
The ideals of a color-blind Constitution and of color-blind law have deep historic roots in the first principle of freedom—the proposition, as Lincoln called it—that all men are created equal, and that this equality forms the basis of inalienable individual rights.
It was to vindicate this principle that Americans ratified the Thirteenth Amendment abolishing slavery, as well as the Fourteenth Amendment guaranteeing "the equal protection of the laws" to all citizens. And it was to vindicate this principle that, beginning in the 1930's, the lawyers for the NAACP Legal Defense Fund embarked upon a litigation strategy designed to end public school segregation.
In 1947 Thurgood Marshall of the NAACP Legal Defense Fund (later appointed to serve on the Supreme Court) successfully argued that the University of Oklahoma Law School could not deny admission to a black applicant. According to Marshall, "classifications and distinctions based on race or color have no moral or legal validity in our society."
Two years later Marshall argued that "racial criteria are irrational, irrelevant, odious to our way of life and specifically proscribed under the Fourteenth Amendment." This was also the argument that Marshall successfully urged in the climactic case of Brown v. Board of Education, asserting "that the Constitution is color-blind is our dedicated belief."
In the University of Michigan cases the Supreme Court is now being asked to enforce the promise of equal treatment without regard to race that lies deep in the grain of the American creed and the civil rights tradition.
As Abraham Lincoln wrote in response to prominent Democrats who urged him to rescind the Emancipation Proclamation: "The promise, being made, must be kept."
