Joseph Jordan* said, “The moral consciousness of any story the United States tries to tell of itself is undermined by the condition and treatment of African Americans.” I would add to this indigenous people. Although it is easy to want to include in this statement women, poverty- and working-class individuals, immigrants, and numerous others who have been and still are oppressed, African American and American Indians demand singular consideration. It is important for US citizens to recognize and address the fact that one part of our nation’s history was a holocaust. The effects and ideologies of that holocaust remain with us today. Genocide on this continent, carried out against indigenous people through Manifest Destiny and Africans and their descendents via the Transatlantic Slave Trade—followed by hundreds of years of broken agreements and oppressive conditions, 250 years of slavery, and 100 years of Jim Crow laws—stands as unique for the unparalleled levels of atrocity as well as for the persistent effects and consequences seen today.
Some take great pride in the fact that the United States is the wealthiest nation in the world. When considered in conjunction with the genocide practiced in order to build that wealth on the backs of free/stolen labor and the foundation of free/stolen land—the wealth created by our holocaust and its legacy of oppression must be seen in its true light. The historical and current condition of African Americans and American Indians/indigenous people must be addressed with distinction—above and beyond all other justice work carried out by activists in the United States.
(*Jordan is the director of the Sonja Haynes Stone Center for Black Culture and History at the University of North Carolina at Chapel Hill, and was the original curator of and a contributor to the exhibit Without Sanctuary: Lynching Photography in America at the Martin Luther King, Jr. National Historic Site in Atlanta in 2002-2003. His current work includes African-Americans and Native Americans: Explorations in Narrative Identity and Place, a collection of essays on Black and Native American interactions.)
Reparations:
Although the concept of reparations certainly dates back as far as oppression, in this country Major General William T. Sherman first documented it as a necessity on January 16, 1865, at the request of President Abraham Lincoln. Sherman’s order noted that a specific range of land was to be reserved for the settlement of those “now made free by the acts of war and the proclamation of the president of the United States.” This land was reserved for freed blacks: “no white person whatever [. . .] will be permitted to reside; and the sole and exclusive management of affairs will be left to the freed people themselves” (330). Sherman’s order noted that the land would be allotted in parcels of “not more than (40) forty acres of tillable ground” and provided for support “to afford the settlers the opportunity to supply their necessary wants” (331). This order was popularly referred to as the promise of 40 acres and a mule. The Freedman’s Bureau Act was formed by congress to oversee the distribution of land and development of settlements. Two months later, following the assassination of Lincoln, Andrew Johnson revoked the order. History books now cite the promise of 40 acres and a mule as legend.
The practice of making reparations has been carried out all over the world by nations that have acknowledged their guilt in crimes against humanity. It is bound by international law. The United States has granted reparations to a handful of indigenous nations, Japanese Americans whose families were interned in US concentration camps, and has been instrumental in ensuring that other countries paid reparations to victims of crimes against humanity, most notably payments by Germany to survivors of that holocaust. However, despite our nation’s apparent support for the concept of reparations, we have yet to examine the need in this country for reparations to be paid to African Americans in any way or to American Indians on a large scale.
In 1989 Michigan Representative John Conyers first introduced to congress a proposal to examine the impact of slavery on African Americans and the possible need for reparations. After introducing the bill (HR 40) in 1989, he has reintroduced it to Congress every year since. The bill does not ask for reparations to African Americans. It asks that a committee be formed to study the impact of slavery on the social, political, and economic life of our nation and to make recommendation for remedies. It has yet to be passed.
Affirmative Action:
The origination of Affirmative Action can be dated back to events as early as the passing of the 14th amendment in 1868; FDR’s 1941 outlawing of segregationist hiring policies in the defense industry; Harry Truman’s 1953 admonition to “act positively and affirmatively to implement the policy of nondiscrimination”; or to the 1954 Brown decision that outlawed segregation in public schools. But generally the beginning of affirmative action is seen as the 1960s. John Kennedy’s 1961 implementation of the Committee on Equal Employment Opportunity, which mandated that federal hiring take “affirmative action” to ensure that hiring was free of racial bias. Or the 1964 Civil Rights Act, which prohibited discrimination of all kinds based on race, color, religion, or national origin and ended 100 years of Jim Crow laws. In 1965 Lyndon B. Johnson used affirmative action regarding the hiring of federal contractors and in 1967 he expanded the definition to include women. He presented it as an issue of redressing discrimination in his famous speech to Howard University in June 1965, where he said:
But freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please.
You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, "you are free to compete with all the others," and still justly believe that you have been completely fair.
Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.
This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.
For the task is to give 20 million Negroes the same chance as every other American to learn and grow, to work and share in society, to develop their abilities—physical, mental and spiritual, and to pursue their individual happiness. (Lyndon Baines Johnson Library and Museum)
Whatever the start date, in all cases affirmative action was about restoring justice and reversing previous or current discrimination.
Little by little, the restorative justice focus of affirmative action is being abandoned in favor of discussion of compelling interest. The value of a diversified workforce or educational environment is without question. As noted in the syllabus of the most recent landmark decision affecting affirmative action, the 2003 Michigan decisions, our Supreme Court noted that “Major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints” (3). But given that purpose, the majority (Grutter) opinion noted that the need for affirmative action would be eradicated in 25 years (31).
Where does restorative justice, or the need for redressing past and current discrimination, fit into this new decision? A concurring opinion submitted by Justices Ginsberg and Breyers is the only part of the Michigan decision that addressed existing problems with access to high-quality education. The Justices pointed out that 25 years after Brown v. Board of Education segregation was still a reality and noted that in 2000-2001 71.6% of black children and 76.3% of Latino/as attended segregated schools. They voiced disbelief that 25 years would make much difference in access to higher education. And they cited research noting “schools in predominantly minority communities lag far behind others measured by the educational resources available to them” (concurring, 2-3). Even four justices from the 1978 Bakke case (where there was no majority decision) noted that they would have upheld the affirmative action program under litigation “on the ground that government can use race to remedy disadvantages cast on minorities by past racial prejudice” (syllabus, 2).
The value of diversity in educational and professional settings is clearly becoming indisputable (though some of our citizens will still dispute it—the courts are consistent about this). The need for remedying past discrimination through affirmative action within particular industries is still enforced by federal regulations overseen by Executive Order 11246, the Secretary of Labor, and the Office of Federal Contract Compliance Programs. It is now the responsibility of our nation’s courts to maintain this commitment—as Johnson said, “We seek not just legal equity but human ability”—to remedy inequality in access to education and preparedness for higher education. To ensure that the courts don’t lose sight of this need in higher education, concerned schools and administrators, scholars and activists, and all citizens must work to ensure that this need is not abandoned in favor of compelling interest, but rather that it remains in our practices and policies along with our commitment to diversity.
A Brief Digression on a Topic to Keep in Mind when Considering Racial/Ethnic Equality:
I want to note that when considering slavery in the US, it is important to address that although the general consensus is that slavery ended following the Civil War (which some call the War of the Slaveholder’s Rebellion), in actuality in 1865 the 13th amendment to the United States Constitution did not actually end slavery; it merely redefined it. Here is the exact text of the 13th amendment to the United States Constitution (http://www.house.gov/Constitution/Amend.html): “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” You will note that as defined by the US Constitution, slavery in the United States is still allowed (and protected by the Constitution) as a punishment for those convicted of a crime. As we consider this fact we must also consider the fact that although only 12.3% of the United States population per the 2000 census (www.census.gov) defines itself as African American, 43.8% of the male prison population is African American, according to the Federal Bureau of Justice Statistics’s May 2004 bulletin “Prison and Jail Inmates at Midyear 2003” (http://www.ojp.usdoj.gov/bjs/abstract/pjim03.htm).
Regarding the language in the US Constitution, also consider that the following language has always been and will always be in the US constitution: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free [male] Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” The others counted as 3/5 were those people in the United States who were enslaved at that time. Of course, that language is understood to be nullified by the 13th amendment, which in 1865 outlawed slavery except for those in prisons; the 14th amendment, which in 1868 noted that representation shall be based on the “whole number of [male] persons in each State, excluding Indians not taxed” but also noted that the right to vote of male inhabitants could be denied for “participation in rebellion, or other crime”; and the 15th amendment, which in 1870 gave men of color the right to vote. (Note that women of any color did not obtain the right to vote until the 19th amendment in 1920 and that indigenous people were not granted US citizenship until 1924 and without a constitutional guarantee of their right to vote went through many years of struggle over suffrage rights.) But back to the language of the constitution: for the purposes of representation and taxes, black men were counted as three fifths of a person and this language remains in our constitution today—nullified or not. We must then note that according to the Federal Bureau of Labor Statistics, in 2003 black men in this country made less than 78 cents on the dollar to what white men in this country make. 78%. Like my mother, I’ve never been particularly fond of math, but even I can’t miss the fact that 78% is just a little closer to three fifths than it is to 100%. (PDF File: http://www.bls.gov/cps/cpsaat37.pdf)
Works Cited
Grutter v. Bollinger et al. Opinion of the Court. USSC No. 02-241. Decided June 23, 2003.
Grutter v. Bollinger et al. Syllabus. USSC No. 02-241. Decided June 23, 2003.
Grutter v. Bollinger et al. Ginsburg, J. concurring. USSC No. 02-241. Decided June 23, 2003.
Lyndon Baines Johnson Library and Museum. U of Texas. 27 January 2005.
http://www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650604.asp.
Sherman, William T. “In the Field, Savannah, Georgia, Special Field Orders, No. 15, January 16, 1865.” Should America Pay?: Slavery and the Raging Debate on Reparations. Ed. Raymond A. Winbush. New York: Amistad, 2003. 331-333.