Hard Cases and Racial Orders:
Understanding Race in Contemporary American Politics
DRAFT—For Favorable Citation Only
Desmond S. King and Rogers M. Smith 1
ABSTRACT.
From the scholarly literature on race in contemporary America, we identify four perspectives
prevalent amongst political scientists: the persistence view, whose proponents stress the
endurance of old patterns of politically imposed racial inequality and hierarchy; the reduced
racism view, for whose supporters racial discrimination is of declining significance in American
life; the liberal obsession view, whose proponents contend that white liberals and self-serving
racial minority leaders insist on using racial categories for allegedly benign, but in fact divisive
and unjust purposes; and the multiracial view, whose advocates point to the inadequacy of a
traditional focus on whites and blacks in modern America. We consider how well these four
perspectives help explain “hard cases”: issues on which the coalitions advocating one position or
another appear to be made up of strange bedfellows in comparison with traditional American
alliances concerned with racial matters. The cases are the deliberate creation of majority minority
districts; struggles over what constitute fair employment practices; debates over racial and ethnic
census categories; and school vouchers. We argue that a modified version of the persistence view,
derived from the King-Smith racial orders framework, retains greatest explanatory utility.
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The Issues. What role is “race” playing in American politics today? How can we tell?
Political scientists give very different answers to these questions. In this essay, we answer the
“how can we tell?” question by focusing on certain types of “hard cases.” We consider issues in
contemporary American politics that most see as having a racial dimension. But in these cases,
race does not seem play the role that various perspectives in political science assign to it in
American politics generally: policy coalitions are constituted by “strange bedfellows” in
comparison with traditional American alliances concerning racial matters. We have chosen
issues that appear especially difficult for the approach to understanding race in America that we
endorse. The hard cases we consider are “majority minority” districting; affirmative action in
employment; racial and ethnic census categories; and school vouchers.
To analyze such issues, political science offers at least four competing views about the
place of race in American politics now. First, some analysts contend that, despite important
changes, the U.S. still exhibits vast continuities in old patterns of politically imposed racial
hierarchy. This is held to be especially true for what these writers see as the primary racial
categories, “white” and “black” (e.g. Brown et al., 2003; Kraus and Swanstrom 2005; Schram
2005). We term this the persistence view. Second, others argue that although race still matters,
traditional racial discrimination has sharply declined in America. Resistance to racially
transformative public policies stems from opposition to ineffectual, unfair governmental
programs more than racism; and patterns of inequality today stem chiefly from economic and
perhaps cultural factors, not white prejudices (e.g. Sniderman and Carmines 1997, 7; Mead 1998).
We call this the reduced racism view. Third, some writers maintain that race remains relevant in
American politics today, but not because of persistent white bigotry. The problem now is that
white liberals and self-serving racial minority leaders insist on using racial categories for
allegedly benign, but in fact divisive, counterproductive, and unjust purposes (Sleeper 1997;
Thernstrom and Thernstrom 2003). This is the liberal obsession thesis. Fourth, many scholars
insist that today we must set aside the traditional focus on whites and blacks in all these other
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perspectives and recognize the multiple racial identities that immigration and inter-marriage have
generated in America (Jennings ed. 1994; Kim 2004, 345-351). This is the multiracial view.
Our view belongs in the general camp of the first response. We build on the recent
argument of King and Smith (2005) that conceptualizes historical and current racial identities and
racial inequalities in America as the products of competing “racial orders.” “Racial orders” are
alliances of political actors, groups and institutions that seek either to resist or to advance the
particular efforts to promote racial equality that are politically central in their eras. In every
period of U.S. history, we can discern across a range of issues one such political order working to
promote arrangements thought to advantage whites, and one seeking to end many of those
advantages. But the dominant aims of these orders have varied over time—from pro-slavery and
anti-slavery alliances before the Civil War, to pro-segregation and anti-segregation orders during
the Jim Crow era, to what we term an “anti-transformative order,” which favors disciplinary
policies rather than race-conscious aid and redistributive programs today, versus a modern
“transformative egalitarian racial order,” which seeks to go beyond formal legal racial equality to
greater equality of conditions (King and Smith 2005, 78-84).
We adopt this approach because we think it correct and because it is falsifiable. If in the
same era the coalitions on different issues with racial dimensions vary considerably, the “racial
orders” analysis falls apart. That does not mean that the alliances must be exactly the same in
each case. One contribution of this framework is that it can highlight how and why particular
political actors and institutions who are customarily members of one racial order may defect from
it on a certain issue. Those defections help explain the distinctive political processes and
outcomes that the struggles over the issue display. In this way, racial orders serve as independent
variables shaping patterns of racial statuses and conditions in America. Though questions about
the politics through which racial orders are assembled are also important, they are ones in which
the orders play the role of dependent variables. They go beyond our concerns here.
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Because our approach highlights historical continuities in systems of racial inequality, it
belongs in the “persistence” camp. Still, it differs from extreme “persistence” positions holding
that there has been no real progress toward racial equality in American life. A “racial orders”
analysis makes clear that the particular policy conflicts, the contesting coalitions, and the
different broader aspirations within those orders have changed over time, in ways that have taken
some severe types of racial inequality off the agenda. The ones that persist, such as criminal
justice policies with grossly disparate racial impacts, are profoundly serious; but they are not
tantamount to chattel slavery (cf. Wacquant 2002).
The racial orders framework also incorporates important insights provided by the other
three perspectives, particularly the recent emphasis on multiple racial identities. Today even
more than in the past, “racial orders” must indeed be understood in multiracial terms. They are
not simply coalitions of white actors, groups, and white-controlled institutions versus black
actors, groups and institutions. They are coalitions of “most whites-and-some-non-white-allies”
controlling some institutions versus “most blacks-and-their white-and-usually-non-white-allies”
dominant in other institutions. As that formulation suggests, in contemporary racial politics,
American political actors and groups who are neither “white” nor “black” are frequently pivotal
“swing” constituencies. Their shifts from one racial order to the other on particular issues can do
much to determine the ways institutions, public policies and practices shape racial inequalities.
We accept, too, that precisely because they play pivotal roles, the distinctive positions of the
many non-white groups often must be grasped as distinctive, rather than treated as a common
“non-white” category. Political analyses must recognize the great variety of American Latinos,
Asian Americans, indigenous peoples and more. But we seek to encompass rather than simply to
subscribe to the insights of “multiracial” perspectives, because we still find white/non-white and
especially white/black dichotomies to be especially important for understanding race in America.
We also agree with proponents of the “liberal obsession” thesis that white liberals and
minority civil rights advocates participating in what we term the contemporary “transformative
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egalitarian racial order” do much to keep race consciousness alive, in ways that are legitimately
controversial. Still, in the end we believe racial categories persist more fundamentally because
they are associated with inequities, material and cultural, and because they are parts of many
persons’ historically constituted senses of their core identities. Those two features reinforce each
other. Today’s racial inequalities remain in significant measure products of past and present
public policies and practices that have benefited some racial groups and harmed others, in ways
that have done much to shape persons’ senses of identity and interest (King 1995; Katznelson
2005). We recognize, with the proponents of the “reduced racism” thesis, that such policies and
practices today are generally no longer self-conscious efforts to perpetuate white supremacy. But
whatever their motives, these policies and practices help sustain race based inequalities by
consciously resisting initiatives widely known to be aimed at greater racial equality. As a result,
efforts of those self-labeled “whites” to secure and to protect advantaged statuses still contribute
significantly to racial disparities today.
That’s all (fairly) easy to assert, hard to demonstrate. Our strategy for doing so,
explorations of “hard cases,” is not definitive. But these studies suggest that the racial order
framework can not only account for issues that appear to fall outside its diagnostic and
explanatory capacities. It can shed new light on how initiatives for and against racial equality are
manifested in contemporary politics (Frymer 2005). It does so by encompassing insights offered
by other perspectives and adding further ones, in Lakatosian fashion.
Explaining these “hard cases” is important, because the predictability of race as a
determinant of voting and policy preferences in America is among the most consistent and
replicable findings in current research. These cases seem to violate this pattern, with whites and
blacks, especially, aligned in unexpected combinations. It is not obvious that any of these four
prevalent political science views of race can explain these aberrations. The deliberate
construction of “majority minority” districts does not suggest the straightforward “persistence” of
old systems of racial exclusion from voting. Even so, neither their supporters nor their critics see
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them as evidence of “reduced racism.” They are instead presented as remedies to persisting racial
discrimination or as an invidious new form of it. Though a number of congressional districts
involve Latino majorities and Latino political actors and advocacy groups, so that the issue has an
important “multiracial” dimension, it still centers on controversies over majority black districts.
And though these districts have liberal proponents who may be seen as “race-obsessed,” they also
have support from conservative Republicans. Similarly, issues of fair employment practices often
now involve complaints about blacks getting preference over other groups, not about the “whites
only” policies of the past, contrary to “persistence” perspectives. But studies show that many
forms of traditional racial discrimination in employment nonetheless persist, despite “reduced
racism” claims (Ayres 2001). This appears to remain especially true for those who are perceived
as “black,” a reality in tension with emphases on multiple racial identities. The evidence of
discrimination also challenges contentions that liberal racial obsessions are the only real problem.
“Persistence” advocates also cannot deny that new racial categories are part of current
census debates. “Reduced racism” proponents cannot deny that race remains a large part of these
debates. Here too it is not only “race-obsessed liberals” who are seeking to keep these racial
categories alive, but also a range of new ethnic and multiracial advocacy groups. That fact means
that “multiracial” analysts are again on strong ground here, but they still face political coalitions
in which white/black dichotomies appear especially important, even if those who are neither
black nor white also play key roles.
Finally, some see school vouchers as responses to the failures of modern urban educators,
not to legacies of past racial discrimination, a claim that challenges “persistence” theorists. But
advocates on both sides of the issue again highlight racial implications in ways that do not fit well
with “reduced racism” analyses. The voucher controversy also is one where conservatives and
liberals, whites, blacks and Hispanics can be found on both sides, in ways that seem hard for a
“liberal obsession” framework to explain. But it is suburban whites, not “multiracial” Americans,
who appear to play the “swing” role in determining political outcomes in this area.
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These hard cases are all also difficult to analyze in racial terms for a further reason that
may seem especially critical for a “racial orders” approach. That framework identifies coalitions
who are either seeking to promote more racially egalitarian policies and conditions, or who are
opposing such changes. Yet there are reasonable disputes over whether majority minority
districts assist or limit the political influence of African Americans and other non-whites; whether
employment discrimination laws expand or limit economic opportunities for these groups;
whether new census categories represent greater racial inclusiveness or a fracturing of non-white
constituencies; and whether vouchers will help or hurt inner-city non-white families. It may well
appear inaccurate to place actors, institutions, and groups within putative “anti-transformative” or
“transformative racial egalitarian” political orders based on their stances on these issues.
We take no position here on whether any of these four policies will prove conducive to
racial equity in the long run. We do argue that contemporary political actors express broadly
though not universally shared perceptions of how various steps are likely to affect the quest for
more material racial equality in the near future, and that most are aligned consistently either for or
against the positions that are perceived as more racially egalitarian in this specific sense.
Virtually everyone accepts that majority minority districts work to increase the presence of nonwhites in legislatures, even if many dispute whether this really helps blacks and Latinos to
advance their interests most effectively. Virtually everyone agrees that employment
discrimination laws work against traditional forms of racial exclusion from many jobs, even if
many feel these measures work against expanding job opportunities overall and impose other
unjust forms of discrimination. Virtually everyone recognizes that new census categories have
the potential to limit some kinds of governmental aid to non-white communities, even though
many feel they may be part of overcoming inaccurate and divisive racial designations. Virtually
everyone acknowledges that school vouchers channel public funds away from predominantly
non-white urban public schools in ways that often aid predominantly white private schools, even
if many contend that significant numbers of non-white parents, children, and their communities
7
benefit. It is therefore not hard to decide what the positions of the modern “anti-transformative”
and the “transformative egalitarian” racial orders are on these issues.
We understand those orders to be comprised as follows. In 2006, the “antitransformative order” centers on the Republican party and its officeholders, who now control both
houses of Congress, the Presidency, a majority of the Supreme Court, 28 Governors, and 20 state
legislatures (with 10 split), and many lower federal and state judges (National Conference of
State Legislatures 2005). They are joined on most racial issues by conservative think tanks and
advocacy groups like the American Enterprise Institute and the Institute of Justice; most major
businesses and their lobbyists; politically active conservative religious groups like Rev. James
Dobson’s Focus on the Family; conservative foundations like the Bradley and Walton
Foundations; most white voters; and some conservative non-whites. The current “transformative
egalitarian” racial order includes most Democratic officeholders and judges, currently in the
minority at the federal level but in control of 22 Governorships and 19 state legislatures, plus the
District of Columbia; most African American, Latino, Asian Pacific American and Native
American advocacy groups, such as the NAACP, the National Council of La Raza, the Asian
American Legal Defense and Education Fund, the Native American Rights fund, and others; most
labor unions; liberal religious organizations and leaders like the National Council of Churches
and Rev. Jesse Jackson; more liberal foundations like the Soros and Ford Foundations; and most
non-whites and liberal white voters.
These coalitions have undergone significant shifts over the past generation. The
ascendant egalitarian transformation alliance of the 1960s included more liberal Republicans such
as Senators Jacob Javits and Edward Brooke. The anti-transformative order in those years
centered on southern white Democrats, especially powerful in the U.S. Senate. But struggles over
race contributed to the remarkable shift of southern white Democrats to the Republican Party in
the last 30 years (Knuckey 2005). Today, we will see that political actors, groups, and
institutions active in these “hard cases” are predominantly aligned in one or the other of the
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camps just depicted. In each of the “hard cases,” at most one group defects heavily to the other
side—but that can be enough to shape policy outcomes strongly.
Majority-minority districts. Reflecting residential segregation, the U.S. has long had
legislative districts in which the majority of the residents were non-white (Swain 1995, 47-48;
Valelly 2004, 60, 155; Geron 2005, 20). From the end of Reconstruction protections for voting
rights in the 1890s to the 1965 Voting Rights Act, however, non-white residents were rarely a
majority of those districts’ electorates (Valelly 2004, 188-190; Geron 2005, 25-26, 61-62).
The Voting Rights Act addressed this chronic under-representation by suspending voting
tests and devices in areas that had below 50% registration or turnout of the resident voting age
population in the 1964 elections. It also required Justice Department “preclearance” of new
voting rules. The Act quickly led to sizable increases in African American voter registration, up
67% from 1964 to 1968 in Alabama, Georgia, Louisiana, Mississippi, North Carolina, South
Carolina and Virginia, where black vote suppression was most severe (Valelly 2004, 4). Officeholding grew more slowly: in 1969, only 32 African Americans served in the state legislatures of
the old South and only 168 did so nationwide. Only 9 served in the U.S. House, with only one in
the Senate, none from the South. Because the Constitution structures the Senate with two
Senators from each state, that chamber has never been greatly affected by the Act. It was long a
bastion of conservative southern white Democrats, as it now is for Republican ones.
But following extensions and amendments of the Voting Rights Act in 1970, 1975 and
1982, greater changes came. By 2005 there were 37 African Americans in the House and one in
the Senate, all Democrats (Haynie 2001, 2; Hedge and Conklin 2002, 1; Bositis 2002 5-6; Encarta
2005). In that year the House had 25 Hispanic members, 20 Democrats and 5 Republicans, while
the Senate had 2 Hispanics, one of each party. The House also had 5 Asian Americans and the
Senate had 2, all Democrats (Library of Congress 2005; YourCongress.com 2005). And from
1980 to 2004, the number of Hispanic state legislators rose from under 90 concentrated in 9 states
9
to 221, serving in three times as many states. The number of black state legislators had risen to
over 600 (Geron 2004, 7; National Black Caucus of State Legislators 2005).
Who brought about these changes? Who opposed them? Do the coalitions resemble the
evolving “anti-transformative” and “transformative egalitarian” racial orders sketched above?
The answers are straightforward when we consider the original 1965 Voting Rights Act,
which was among the greatest successes of the modern transformative egalitarian order as
constituted in the 1960s. Reform-minded Democrats controlled the White House and Congress;
racial liberals dominated the Supreme Court; and allied civil rights groups had reached
unprecedented peaks of mobilization and prestige. They were opposed by the rising conservative
movement in the Republican Party, led by Barry Goldwater, and most white southern Democrats,
such as Alabama’s flamboyant Governor George Wallace. Their positions on racial issues still
had widespread white support: in 1964, a year before the Voting Rights Act, only 30% of
American whites thought blacks should have more influence in government (Free and Cantril
1967, 124). Even so, anti-transformative forces controlled governing institutions only at the state
level and in some key congressional committees.
Though voting rights struggles have a much longer history, this most robust federal
instrument for protecting against invidious voter discrimination came when it did because in
1964, local civil rights activists in Selma, Alabama won the support of the Southern Christian
Leadership Conference and Martin Luther King, Jr. for their voter registration campaign.
Already acclaimed world-wide, King received the Nobel Prize late in 1964. But in Alabama, he
and other voting rights activists were repeatedly met with tear gas, clubs, and other forms of
brutal repression, culminating in televised violent confrontations as thousands of civil rights
protestors marched from Selma to the state capital in Montgomery in March, 1965.
By that time Democratic President Lyndon Johnson had been elected with 61% of the
vote; Democrats had extraordinary 2/3 majorities in both houses of Congress, with a smaller
percentage of southern Democrats and a higher percentage of racial liberals than in previous
10
Congresses; and the Warren Court heralded voting rights reform in the landmark
Reapportionment Cases, led by Reynolds v. Sims (377 U.S. 533 [1964]). These racial liberals in
the Congress, the Executive branch, and the Supreme Court allied themselves strongly with the
civil rights activists. King directly influenced the content of the voting rights bill that Johnson’s
Justice Department prepared and that the President signed on August 6, 1965. Opposition to the
Act came from many Republicans, who submitted an alternate bill, as well as many white
southern Democrats in Congress and in state offices; but in 1965 “anti-transformative” alliance
members were clearly in the minority (Hudson 1998, 53-54; Valelly 2004, 193-197).
Much soon changed. White American began reacting against overwhelming Democratic
control of the national government, against the everyday difficulties of racial transformations, and
against the violence that broke out in American cities as many African Americans deemed the
pace of change too slow. Republicans made significant congressional gains in 1966; George
Wallace split the Democrats, running a major third-party campaign in the 1968 election; and a
conservative Republican, Richard Nixon, won the Presidency. After the loss of King’s
charismatic leadership via assassination, civil rights groups lost some momentum and broader
popular appeal, and they lacked a clear shared agenda. Still, they remained active; Democrats
controlled Congress; racial liberals remained a majority on the Supreme Court and read the
Voting Rights Act expansively to protect against the “dilution” of the power of minority voters in
Allen v. State Board of Elections (393 U.S. 544 [1969]); and the Act itself expanded Justice
Department enforcement capacities. Thus the “transformative egalitarian” racial order retained
key institutions, added others, and had a broad base. But by the 1970s it was not as dominant
over “anti-transformative” actors and agencies as it had been in the mid-1960s. Even so, in 1970
Congress extended the Voting Rights Act for five years, despite opposition from conservative
Republicans and southern Democrats. The main concession to opponents’ arguments that the Act
unfairly targeted the South was to widen its coverage, including a national ban on literacy tests
that civil rights advocates initially questioned (Thernstrom 1987, 34-37, 47; Hudson 1998, 82).
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Partly as a result, Mexican Americans, especially, then began to play key roles when the
Act came up for renewal in 1975. At that time there were only 8 Hispanics in the U.S. House and
one Senator, Joseph Montoya of New Mexico. With the Republicans seeking to recover from the
Watergate scandals, President Gerald Ford did not oppose the Act. He only sought to limit
renewal to five years instead of the ten proposed by civil rights proponents. Renewal for seven
was the compromise. But the Mexican American Legal Defense and Education Fund
(MALDEF), especially, urged new protections for Chicanos, in language-based triggers for
federal monitoring and pre-clearance requirements. Congress responded with requirements that
voting materials be printed in the language of four non-English speaking groups, American
Indians, Asian Americans, Alaskan Natives, and Hispanics, whenever they constituted 5 percent
of the voting population of any political subdivision. Failure to provide such materials would be
viewed as an illegal literacy test which, combined with low turnout, could trigger Justice
Department election supervision and preclearance requirements (Hudson 1998, 110).
Some African American leaders were slow to support these changes, fearing they would
stir up opposition to renewal (Thernstrom 1987, 50-53). But Congresswoman Barbara Jordan,
elected in 1972 as the first African American Representative from Texas, championed the cause
of Hispanic and Native American voters. Jordan thereby helped lead an expansion of the
“transformative egalitarian” coalition in the face of declining white support that would prove to
be an enduring shift of that order in a more “multiracial” direction, though not always a
harmonious or successful one (Valelly 2004, 204).
Conservative Republicans like Nebraska Senator Roman Hruska and southern
conservatives of both parties like South Carolina Senator Strom Thurmond, Mississippi Senator
James Eastland, and Arkansas Senator John McClellan argued in 1975 that, far from needing
expansion, the Act had done its work. Renewal meant only heightened encroachments on states’
rights. But the resurgence of modern conservatism was still embryonic, and the newly expanded
voting rights coalition prevailed (Hudson 1998, 109-116). These developments again show
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greater transformation than pure “persistence” views would predict, and the continued importance
of racial inequities to a broad range of Americans. They also show both that the actors and
politics of America’s racial orders were becoming more explicitly “multiracial” but that most
controversies still centered on black voting rights.
With this past as prologue, the 1982 Amendments and their aftermath then provided the
elements most central to today’s debates over how to understand the race politics of majorityminority districts. The amendments arose because by the mid-1970s, Nixon and Ford had added
five Republican appointees to the Supreme Court. Though two, Harry Blackmun and John Paul
Stevens, would disappoint their sponsors in many respects, nonetheless the Court began to break
away from the “transformative egalitarian” racial coalition. Racial liberals rightly expected that
process to be carried further by appointees of President Ronald Reagan, elected in 1980. That
same year, the Supreme Court sustained an at-large election system in the white-majority city of
Mobile, Alabama against complaints that this structure made it difficult for African American
candidates to win (Mobile v. Bolden, 446 U.S. 55 [1980]). The Court concluded that a VRA
violation had to have a “racially discriminatory motivation.” These motives had not been shown
to be present in the case of Mobile’s system, adopted in 1911 primarily to limit the impact of
Socialist voters, as African Americans had already been disfranchised.
With a Republican-dominated Court inclined to read the Voting Rights Act narrowly,
with a new Republican President and a thin new Republican majority in the Senate, but with
Democrats still dominant in the House, civil rights activists became determined not only to renew
the Act for as long as possible in 1982 but to strengthen it by repudiating the Bolden requirement
of racially discriminatory intent (Thernstrom 1987, 110-112). The proposed Amendments
clarified that one factor in deciding whether an electoral system was equally open to participation
by all citizens would be the extent to which long-disadvantaged racial and linguistic groups
succeeded in electing members of their group to office (Hudson 1998, 137). This “resultoriented” criterion would enable advocacy groups and DOJ officials to challenge state legislative
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and congressional districting plans that seemed likely, given the history and current
circumstances of those districts, to make the election of blacks or Latinos improbable.
The Reagan administration did not oppose the Act’s extension, but it expressed
reservations about the new emphasis on “the extent to which members of a protected class have
been elected to office” as a criterion for whether an electoral system provided genuinely equal
opportunities for participation. Conservative southern and western Republicans including South
Carolina’s Strom Thurmond, North Carolina’s Jesse Helms and John East, and Utah’s Orrin
Hatch mounted stiffer opposition, denouncing the bill as setting up a stigmatizing “quota” system
of racial and ethnic representation, despite its guarantee that there was no “right to have members
of a protected class elected in numbers equal to their proportion in the population.” Yet even
Thurmond, then chair of the Senate Judiciary Committee, was less militant than in years past.
Both chambers passed the amendments by landslide margins (389-24 in the House, 85-8 in the
Senate) (Thernstrom 1987, 105-116; Hudson 1998, 137-145).
Did this passivity by Republicans, long hostile to civil rights causes, mean that some saw
an opportunity in the 1982 Amendments’ stress on success in electing minority candidates?
Perhaps they anticipated that state legislators would now be able to devise apportionment plans
that “packed” black and Latino voters into super-majority districts that would elect minority
candidates, but that would also take Democratic voters out of more competitive districts.
There is little evidence for this strategic behavior in the legislative history. Reagan’s
support for the Voting Rights Act did represent a key fissure in the anti-transformative alliance on
this issue; but neither he nor his Justice officials hinted at any benefits from strategic district
construction. Rather, Reagan recognized the popularity of the Act with minority groups, and he
made his position part of his efforts to win, especially, Latino voters (Reagan 1982). Southern
Republicans in the House instead introduced bills to enhance the abilities of states to bail out of
Voting Rights Act coverage and to eliminate requirements for bilingual election materials. Most
Republicans and more conservative white southern Democrats--some of whom, like Phil Gramm
14
of Texas and Richard Shelby of Alabama, would soon become Republicans—supported these
proposals. Senate Republicans focused their opposition on the “results” standard added to
Section 2 of the Act, with support from Reagan’s Assistant Attorney General for Civil Rights,
William Bradford Reynolds (Williams 2005). But the Republican’s Senate majority of 53
included liberal Republicans like John Chafee of Rhode Island, Arlen Specter of Pennsylvania
and Charles Mathias of Maryland, the Senate sponsor of the extension bill. With their aid,
“transformative egalitarians” who favored strong measures to protect minority voting rights
remained dominant in the Congress. They prevailed over the opposition of most conservative
Republicans and traditional southern Democrats, not in alliance with them.
Instructed by the mandate the amendments provided, the Supreme Court then reversed
Bolden in Rogers v. Lodge (458 U.S. 613 [1982]). Writing for a 5-4 majority, the Court’s liberal
leader, William Brennan, set out clearer guidelines for finding unconstitutional vote dilution
without racially discriminatory intent in Thornburg v. Gingles (478 U.S. 30 [1986]). In sum, the
1982 Amendments continue to be comprehensible as the products of a weakening but still potent
“transformative egalitarian” racial order which gained a further victory against ascendant but not
yet dominant “anti-transformative” forces. Few if any saw these racial issues as of “reduced”
significance. “Multiracial” concerns were present but black voting power dominated discussion.
And even as reformers gained a new weapon against persisting racial inequities, supporters and
opponents of change largely remained arrayed in familiar fashion.
The reform efforts appeared to succeed when after the 1990 census, state legislatures,
often prodded by the Justice Department, redrew fifteen U.S. House districts to make it more
possible for African Americans to get elected to Congress, and ten to improve the chances of
Latinos (Canon 1999, 2). Sixteen new African American congressional representatives then won
election in 1992, 12 from former Confederate states, which had collectively only elected 9 blacks
in the 20th century, none until 1973 (Encarta 2005). 2 Ten new Latino U.S. Representatives were
elected that same year, when only 14 were already serving in Congress. In state legislatures the
15
number of black state legislators increased by almost 50 to 530 and Latinos to 156 (Kousser
1999, 13; Bositis 2002, 17). Undeniably, consciously created majority minority legislative
districts, especially those adopted after the 1982 VRA Amendments, promoted greater material
racial equality along one dimension, descriptive representation in legislatures, even though
African Americans, Latinos, and Asian Americans remained under-represented in relation to their
percentages of the U.S. population as a whole. That the U.S. Senate, in contrast to the House, has
thus far had only four African American and five Latino Senators in its history, of which one
African American and two Latinos are now serving (along with two Asian American Senators
from Hawaii), underscores the transformative impact of the Voting Rights Act.
Even so, analysts including Carol Swain and David Lublin have argued that Republicans
seized the opportunities provided by the 1982 Amendments to create “max-Black” and sometimes
“max-Latino” state and congressional legislative districts, with approval from the Republicancontrolled Justice Department, and often in alliance with African American Democrats against
their white counterparts (Swain 1994; Lublin 1996). The new districts increased descriptive
representation of non-whites in Congress but also enhanced the power of Republicans versus
Democrats, at the expense of the interests of most non-whites. This claim has some force.
Though most GOP conservatives continued in principle to oppose race-conscious districting, at
times they did seek to maximize their power under the new VRA rules of the game, and in some
states they got black support (Canon 1999, 76).
Yet it is doubtful whether these efforts had much effect. Most of the “new” majority
minority districts were created in the South between 1990 and 1992, a time when white
Democrats remained sufficiently in control of state legislatures to override any conservative
Republican/black Democratic alliances (Canon 1999, 5, 75, 104). As late as 1992, Democrats
controlled every legislative chamber in the sixteen states of the South except for the Florida
Senate, though by 2002 Republicans had gained control of 13 out of 32 (Storey and Rose 2002).
Those numbers clearly show GOP progress. But by and large, the progress did not come because
16
dominant white Democrats chose to create majority minority districts likely to elect non-white
Democratic rivals, or because Republican/black Democrat alliances overrode white Democrats.
Instead, these trends arise from the general gains of Republicans in the U.S. and especially the
South, fed in part by white defections from the transformative egalitarian order and its policies.
Some scholars and politicians argue that in the Bush Administration (188-92), the
Department of Justice used its VRA enforcement powers for partisan advantage, insisting that
states create majority minority districts that weakened the overall potential for Democrats to be
elected (Canon 1999, 75-76, 110). Without accusing the DOJ of partisanship, the Supreme Court
held that the Department had improperly sought to maximize majority minority districts in Miller
v. Johnson (515 U.S. 900 [1995]). And it is true that in the early 1990s the DOJ rejected
congressional districting plans passed by legislatures dominated by white Democrats in several
southern states. But Bernard Grofman, Lisa Handley, and Mark Posner, among others, argue that
claims of partisan motivation are misplaced. These analysts contend that much of the DOJ Civil
Rights Division’s work on districting was done by career civil service professionals, many
personally liberal, who were responsibly using the mandate of the 1982 Amendments to address
longstanding problems in electoral systems that fostered severe minority under-representation
(Grofman and Handley 1998, 72n7; Posner 1998, 88-98). During this first phase of the creation
of majority-minority districts, it is likely that some Republicans recognized that such redistricting
might be politically advantageous; but the dominant Republican stance toward majority minority
districts nonetheless was opposition, not advocacy.
It is true that actions often speaker louder than words. And when we look at particular
southern states, we can find some evidence that Republicans and African Americans voted
together to support majority minority districts in South Carolina (Burton, 1998, 290, 309-312),
though black Democrats came to see that strategy as misguided. A GOP/Black alliance also
surfaced in Virginia State Senate districting, though African Americans in the Virginia House
sought to maintain Democratic power as well as maintaining black representation---thereby
17
winning criticism from the NAACP along with Republicans for not creating more majority
minority districts (Hagens, 1998, 324-328). There is also evidence that Georgia’s Legislative
Black Caucus pursued a similar strategy for a time, but they divided internally and were forced to
abandon it when it became clear that Republicans would benefit more than Democrats (Holmes,
1998, 216-217). Even those Republicans willing to support majority-minority districts have had
very different ideas than black legislators about what specific districts should be created, so when
“unholy alliances” of non-whites and Republicans have arisen, they have been hard to sustain.
Thus in California, though some black Republicans spoke in favor of Republican
apportionment plans in 1991, in fact those plans scattered blacks and Latinos far more than
Democratic proposals and they received little support from most African-Americans or Latinos
(Kousser 1998, 166-174, 187). In North Carolina, a few blacks joined Republicans on some
redistricting issues, but most opposed all plans that might increase Republican overall power
(Sellers, Canon, and Schousen 1998, 282-284). In Alabama in 1992, African American legislator
George Perdue proposed a House districting plan that would have created nine new majorityminority black districts, while Republicans favored the creation of only three (Williams 2005).
And in Louisiana the dominant coalition was a standard one: more conservative white Democrats
and all House Republicans supported a plan for the state House of Representatives that did not
create the sort of majority minority districts that African-American legislators sought. The GOP
plan created 19 majority-minority districts, but it increased the likely yield of black legislators
only by two. The Louisiana Legislative Black Caucus unanimously opposed this Republican
proposal and endorsed an alternate plan that would have created 27 majority minority districts,
with a far greater likelihood of black candidates getting elected.
They lost. But the Department of Justice’s Civil Rights Division then denied the
Louisiana plan pre-clearance approval—so that rather than conspiring to expand Republican
seats, it sided with the black legislators against local Republicans and conservative white
Democrats. The legislature then adopted a plan that distributed African American voters more
18
efficiently, with strong black legislative backing and otherwise divided support in both parties.
The same pattern was followed in Louisiana’s State Senate districting. An African
American/Republican coalition versus white Democrats did materialize in support of a
Congressional districting plan that threatened white Democratic incumbents, but that plan was
soon embroiled in lengthy litigation, which ultimately resulted in a plan favored by most
Republicans and white Democrats and opposed by most African American legislators (Rabin
1991; Engstrom and Kirksey 1998, 234-264). In the wave of redistricting battles that followed
the 2000 census, Republicans have sometimes sought to increase black majorities in certain
districts, and with increased Republican representation, they could have had great success if they
had obtained even the limited black support they did in the early 1990s. Instead, the prevalent
pattern now has been for blacks to join white Democrats in seeking to reduce some black
population concentrations in order to strengthen the electoral prospects of white Democrats. For
example, in Louisiana not a single African American legislator voted for the 2001 Republican
plan currently in place (Williams 2005; need more on 2001 round).
But if Republicans in some state legislatures have opportunistically supported creation of
some majority minority districts, occasionally with some African American support, the reality
remains that it was the modern proponents of egalitarian racial transformation, not the opponents,
who created the Act and its major amendments. Conservative Republicans and the dwindling
ranks of conservative southern Democrats have generally remained opposed in principle, if not
always in practice. And as the latter groups have succeeded in electing Republican Presidents
who have further re-shaped the Supreme Court, that institution has become a closely-divided but
clear opponent of deliberately created majority-minority districts, both black and Latino.
Republican appointees Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, Clarence
Thomas and Chief Justice William Rehnquist provided the 5-4 majority in Shaw v. Reno (509
U.S. 630 [1993]) for a ruling that race could never be the dominant factor in constructing
congressional districts. Similar decisions followed in a Georgia case, Miller v. Johnson (515 U.S.
19
[1995]) and a Texas one, Bush v. Vera (517 U.S. 952 [1996]), with votes shifting chiefly on the
issue of whether race and ethnicity could ever be considered at all. It has remained liberal black
and white Democrats and African American, Mexican American, and Puerto Rican civil rights
groups who have supported the constitutionality of majority-minority districts, and conservatives
allied with the Republican Party who have opposed them.
As political lines are being drawn today in anticipation of the 2007 deadline for the
Voting Right Act’s expiration, these patterns are not being dramatically altered. Calls for the
Act’s renewal are being led by iconic African American civil rights leaders including
Representative John Lewis, the Reverend Jesse Jackson, and former Atlanta mayor Andrew
Young, joined by Democratic liberals such as Edward Kennedy and moderate Republicans like
Arlen Specter (Kemper and Baxter 2005). And the mid-1970s addition of most politically active
Latinos to the “transformative egalitarian order” seems secure, at least on this issue: the National
Hispanic Caucus of State Legislators lists among its “strategic alliances” the National Black
Caucus of State Legislators and the NAACP, both of which also support majority-minority
districts (National Hispanic Caucus of State Legislators 2005). Conservative commentators and
activist groups are arguing instead that the time for the Act has passed. It is true that both Senate
and House Republican leaders and administration officials are indicating that they, too, will
support renewal in some form, and it remains to be seen how intensely the issue will be contested
and who the players will be. But significant continuities are evident.
The politics of majority-minority districting has, then, grown more complex from the
straightforward clash of racial orders that occurred over the 1965 Voting Rights Act. Latinos
have become important shapers of policy and providers of political support. The result has been a
broadening of majority-minority districts beyond African American ones; the strategic advocacy
by some Republican legislators and strategists of majority-minority districts that, generally, are
very different from those favored by black and Latino legislators and other racial egalitarians;
20
and, in some instances, “unholy” or at least unanticipated alliances between Republicans and
racial minority legislators.
But such strategic behavior is not unusual in the complex world of politics. It has not
been so extensive as to represent any basic alteration of the composition or clash of contemporary
racial orders over minority majority districting. The issue remains one on which progress has
occurred, but many racial inequities persist. These continue to center primarily though not
exclusively on systems limiting the political influence of African Americans and non-whites more
generally. The issue is still a major concern in American political life, one that neither provides
evidence of reduced racism nor of a topic kept alive solely due to the obsessions of liberal civil
rights activists. Majority minority districting, and voting rights more generally, remain a leading
battleground for the modern formations of America’s racial orders.
Fair employment and affirmative action. Before race-based affirmative action created
alliances that challenge all four current views of race in America, the coalitions on fair
employment policies reflected the dominant racial orders exactly. In the Jim Crow era, most
southern Democrats and Republican conservatives, along with many business and union leaders
and white supremacists generally, successfully opposed the efforts of African Americans, with
some liberal clerical and political allies, to prod the federal government to combat racial
discrimination in employment. Only the pressures of World War II forced the executive branch
to take the first authentic step toward fair employment, in order to build a defense industry and to
placate civil rights activists able to cite international disapproval of the U.S. Faced with the
March on Washington movement’s threat to deliver mass protest in the capital during a period
when war needs to mobilize industry were paramount, and supported by northern liberals,
President Franklin D. Roosevelt issued executive order 8802 on June 25, 1941, establishing the
Fair Employment Practices Committee (FEPC) (Kryder 2000). The FEPC’s mandate threatened
southern Democrats and allied conservatives (McMahon 2004), and it faced constant
congressional pressure. It also met broader challenges from southern Democrats and party
21
conservatives. Opposition to including a call for a permanent FEPC in the Democratic platform
was arguably the most important issue at the party’s 1944 national convention.
Even so, executive-initiated bills to establish a permanent FEPC were introduced in
January 1944 in the House and Senate and favorably reported from committees in August and
November, only to be defeated by a Southern-led filibuster. Georgia’s Senator Richard Russell
was especially implacable. Truman made an important choice to side with northern liberals on
racial issues and supported new FEPC bills in 1945; but southern Democrats on the House Rules
and Appropriations committees blocked them. An attempt to get an FEPC bill passed as part of
the War Agencies Appropriations Bill in July 1945 also floundered. When Truman once again
proposed in 1949 to make the FEPC permanent, the leading opponents included Texas’s Senator
Lyndon Johnson, a pivotal figure who at this point served the southern congressional wing of the
white supremacist order, but who later became an advocate of affirmative action (Katznelson
2005, 8). The FEPC never lost its temporary status. It was twenty years before reform succeeded.
In 1948, two years after the FEPC ended, the Fair Employment Board (FEB) was
established in the Civil Service Commission to monitor discrimination and hiring practices. It
was replaced in 1955 by the President’s Committee on Government Employment Policy, in
existence until 1961. All these organizations’ survey based reports routinely showed that the
patterns of skewed employment in federal government and private industry first documented by
FEPC reports endured during the 1950s. When the anti-white supremacist alliance finally came
to include the Congress and the Executive branch with the triumphs of the civil rights movements
and more liberal Democrats in the early 1960s, this evidence helped support national legislation
to end employment discrimination, especially Title VII of the 1964 Civil Rights Act. And on this
as well as other issues, that egalitarian racial order remained strong enough to predominate in
public policy and extend many of its victories into the early 1970s.
But though all this set the stage for Presidents Johnson’s and then Nixon’s surprising
commitments to a federal role in achieving racial parity in employment, the possibility of racial
22
preferences in employment for blacks immediately generated denunciation. The segregationist
Mississippian Democrat Senator James Eastland argued against the Civil Rights Act of 1964: “I
know what will happen if there is a choice between hiring a White man or hiring a Negro, both
having equal qualifications. I know who will get the job. It will not be the White man” (quoted in
Swain 2001, 320). Eastland’s thesis became a mantra of affirmative action critics. It played to
longstanding fears of quotas. As early as 1944, the FEPC Chairman wrote to the House
Appropriations Committee refuting the charge that the FEPC enforced “quota systems” for black
employment: “its affirmative action is limited to the receipt, examination and processing of
specific complaints that available workers have been denied employment solely on the ground of
race, creed, color or national origin” (quoted in King 1995: 77).
Conscious of these tensions, supporters of the 1964 Civil Rights Act mostly denied that it
would be a basis for racial preferences in favor of African Americans, much less racial quotas.
But Executive Order 11246, issued by President Lyndon Johnson on September 24, 1965,
established a general principle of affirmative action to address the enduring effects of past
employment discrimination toward African Americans and other minorities. The Order required
private firms receiving federal grants to take action to correct patterns of hiring discrimination
(monitored by the Office of Federal Contract Compliance in the Department of Labor). Initially,
this policy was unspecific. EO 11246 simply “enjoined government contractors and others
receiving government funds to promote hiring of blacks and other minorities,” among other
requirements. But in practice EO 11246 shifted hiring policies toward quantified employment
goals, since to be in receipt of federal funds through contracts, employers needed to demonstrate
that they were complying with the requirement to hire African Americans. As Ira Katznelson
(2005) writes, the era between the end of the Civil War and the 1960s civil rights enactment is
well described as “when affirmative action was white.” To many “transformative egalitarians,”
counter-measures now seemed appropriate. But like Eastland, those opposed to racial change
soon began criticizing “affirmative action” measures as synonymous with unjust “racial quotas”
23
and “reverse discrimination” against whites. Many used the slogans of the civil rights movement
they had recently resisted to argue against this expansion of the transformative order’s agenda.
That irony explains why affirmative action in employment does not fit easily into
prevailing accounts of the role of race in modern America. For “persistence” views, such
affirmative action is a hard case because it involves allegedly invidious discrimination against
whites, not blacks. Proponents of the “reduced racism” view, in contrast, see its existence as
vindication of their perspective. Many suggest that, because anti-black discrimination has
declined, white resentments of preferential hiring are far from racist. They express commitments
to equal rights that civil rights advocates once professed and have foolishly abandoned.
Yet much empirical evidence challenges the “reduced racism” view that traditional racial
discrimination is of diminished import in employment, in ways that suggest at least some
“persistence” claims are right. Audit tests show continuing discrimination against native blacks,
especially in hiring and promotion practices. The profile of business and political elites also
remains disproportionately white: there is but one black U.S. Senator, for example. The
disproportionate concentration of African Americans among those receiving welfare; the racial
disparities in how agencies treat welfare recipients; and varying economic outcomes across states
all document a set of non-random racial disparities in which something like traditional racial
discrimination appears to play a significant role (Schram 2005; US Commission on Civil Rights
2002). This endurance is a chief reason why using some system of quantified goals in
employment became prevalent.
Even so, advocates of the ‘liberal obsession’ view of race also regard affirmative action
in employment as prime evidence for their position. They see liberals and civil rights group
leaders invoking outdated claims of racial injuries to defend affirmative action measures that
please some of their constituents, but that also sustain and inflame racial antagonisms and inflict
new injustices (Thernstrom and Thernstrom 1997). Opinion data do indicate that many in the
electorate object to these programs (Mendelberg 2000, Gilens, Sniderman and Kuklinski 1998,
24
Sniderman and Piazza 1993). Yet these data also show that most non-whites, not just their
leaders, support at least some forms of affirmative action in employment. And from Eastland on,
it has often been opponents of egalitarian change, not liberals, who have used the issue to stir
racial anger vigorously, as in Republican Jesse Helms’ “white hands” voice-over advertisement
against African American Democratic Harvey Gantt during the 1990 North Carolina senate race.
Affirmative action is also a hard case for the liberal obsession view because of the strong
support for it among business and military leaders. Former Chairman of the Joint Chiefs of Staff
Colin Powell firmly endorsed affirmative action for the military. The use of numerical goals in
federally funded contracts to private employers and public agencies since the 1970s has also
induced a sea change in employment practices. Most private firms, especially those with
numerous employees, have instituted strategies to accommodate anti-discrimination laws. Many
have appointed affirmative action or diversity officers and adopted written equal employment
plans to guide their hiring practices and promotion reviews (Dobbin and Sutton 1998, Dobbin,
Sutton, Meyer and Scott 1993). These policies still often refer to quantitative goals, since these
provide data that can serve to defend against charges of discrimination against non-whites, though
the goals are increasingly described in terms of diversity management. Many companies profess
that these new strategies both strengthen the quality of their workforces and help them reach new
markets. So, some whom liberal obsession proponents would expect to oppose affirmative action
in employment, because it imposes burdens on their hiring practices, have embraced this agenda.
‘Multiracial’ analysts, in contrast, again can claim that this issue supports their view: it is
hard to discuss affirmative action in employment without considering who in addition to African
Americans may receive preferences (Graham 2002, Swain 2001). Asian Americans and Latinos
have become swing constituencies in that many support affirmative action programs and
sometimes benefit from them, but many also fear that they are losing opportunities to African
Americans.
Many worry also about the political divisions with which these programs are
associated. Many Latinos and Asian Americans wish to be perceived as enacting a classic
25
immigration narrative of assimilation and advancement through hard work, rather than as having
received special treatment. Nonetheless opinion poll data and political disputes over various kinds
of affirmative action indicate that white Americans usually view these programs primarily as aids
to African Americans (Sniderman and Piazza 1993). The racial tensions over affirmative action
still center on whites and blacks.
Even so, this may seem an issue that is not well accounted for by the “racial orders”
variant of a “persistence” approach that we defend here. Though affirmative action in
employment has lost significant support with the increasing power of “anti-transformative”
forces, it survives in part because of support from national labor unions and, even more
surprisingly, major employers. We do see the shift of many business and labor groups in favor of
affirmative action as key to explaining its somewhat battered survival. But in the case of labor,
the shift represents an effort to win a new base in public sector and service industries staffed
heavily with non-whites and women, at a time when union membership in general has sharply
declined. Unions have had little choice but to become more full members of the “transformative
egalitarian” order; but for the same reason, they bring to it only limited strength (Warren 2006).
The defection of business from the ranks of those opposed to regulations to promote “fair
employment” is more significant, but we see it largely as an adaptation to the earlier success of
the civil rights movement in winning anti-discrimination laws. Those successes have been
substantial enough that while affirmative action programs are politically vulnerable, basic antidiscrimination laws are not. Under those circumstances, even businesses that may not be wildly
enthusiastic about affirmative action seem to have decided that having such policies in place is
prudent protection against anti-discrimination suits. On this analysis, if anti-transformative forces
build on their successes in chipping away at affirmative action to challenge the legitimacy of antidiscrimination laws, perhaps by arguing for the desirability of unbridled employer discretion in
hiring, firing and promotions (e.g. Epstein 1992), then business support for affirmative action is
likely to erode. But for the foreseeable future, business has become the pivotal “swing”
26
constituency in what are otherwise traditionally aligned transformative and anti-transformative
coalitions on issues of affirmative action and employment.
This transition did not occur easily. It has depended among other things on the narrow
and weakening hold of the transformative egalitarian alliance on the federal courts. From the
issuance of executive order 11246, the Supreme Court faced cases in which business often
opposed bans on discrimination and the imposition of quotas in federal grants. In Griggs v. Duke
Power Co (401 US 424 1971) the Court found against a power company’s use of intelligence
tests in making decisions about whom to hire, since even if they were neutral, such tests often
operated to “freeze” the status quo of discriminatory practices. Employers had to demonstrate
statistical parity between the racial makeup of their employees and the local population from
which the work force was drawn. In Fullilove v. Klutznick (448 US 448 1980) the Court held
congressionally mandated “set asides” – that is, making a percentage of jobs supported by federal
funds open to minority candidates only – to be constitutional, again over much business
opposition. In Metro Broadcasting Inc. v Federal Communications Commission (497 US 547
1990) the Court by 5-4 upheld, against a corporate challenge, the right of Congress to give
preferences to racial and ethnic minorities in conferring broadcast licenses.
In this and other federal programs, the beneficiaries of affirmative action have been more
than African Americans. They have most often also been those with Hispanic surnames; Aleuts;
Eskimos; American Indians; Asian Pacific Islanders; and women. Programs in some areas have
included all Asian Americans, though less frequently in regions with large, established Asian
American communities, such as California. Those features suggest why most Latinos and Asian
advocacy groups and voters favor affirmative action measures (Camarillo and Bonilla 2001).
American Indians also support affirmative action in employment, though they have benefited
only to a limited extent, compared with affirmative action in education (Thornton 2001). Here, as
in voting rights litigation, transformative egalitarian forces have been sustained in part by adding
27
other racial and ethnic minorities to African Americans, broadening the egalitarian order without
radically altering the make-up of the opposing coalitions.
Instead, the dominant coalitions opposing and favoring fair employment affirmative
action – most Republicans, now in control of Congress, the White House, and the Supreme Court,
joined by conservative advocacy groups and, on this issue, most white voters, versus most
Democrats, civil rights groups, unions, many businesses, and most non-white voters in addition to
liberal whites – show general continuity with past patterns, apart from the pivotal position of
business. These developments have placed the Court in particular under strong pressure to
invalidate affirmative action, but support has remained strong enough to prompt the Court to
narrow the permissibility of such measures without overturning them entirely. The first major
judicial victory for anti-transformative forces came in Richmond v. J. A. Croson Co (488 US 469
1989), where the Court found the Richmond City Council’s Minority Business Utilization Plan,
which required white contractors who received city construction contracts to employ minority
subcontractors and suppliers for at least thirty percent of the total dollar amount,
unconstitutional. The plan was modeled on the federal program upheld in Fullilove, but the Court
ruled 6-3 that Richmond lacked Congress’s 14th Amendment enforcement powers and could not
define the beneficiaries so broadly: there was no evidence that Richmond had discriminated
against all the groups, including Eskimos and Aleuts, who might theoretically benefit from the
program. The Court went further yet in Adarand Constructors Inc v Pena (515 US 200 1995). In
a 5-4 judgment, the Court ruled that not even Congress could authorize a 1990 Transportation
Department program which awarded bonuses to highway contractors who gave at least 10 percent
of their contracts to “disadvantaged business enterprises,” absent a showing that the particular
government unit in question had discriminated against the specific groups benefited by the
program. Two justices urged that the Court ban affirmative action altogether, and many
observers believed the Court was moving to do so.
28
As a result of these decisions, many states modified or abandoned affirmative action
programs in public employment. In keeping with its “mend it don’t end it” approach, the Clinton
White House also responded to the 1995 ruling with a review of federal affirmative action
programs to end any that fostered quotas. But though Adarand made clear that all affirmative
action measures would receive strict scrutiny, Justice Sandra Day O’Connor’s majority opinion
stated that “we wish to dispel the notion that strict scrutiny is strict in theory but fatal in practice.”
She was aware that here, as in the later Michigan cases concerning affirmative in education, many
employers and military leaders stressed the desirability of affirmative action; and a bare majority
of the Court seemed persuaded that this meant that not all such programs should be banned (Gratz
v. Bollinger, Grutter v. Bollinger, 2003). But if the triumphs of the modern transformative
egalitarian alliance have not been entirely overcome in this area, the chipping away of affirmative
action programs in employment shows that the balance of power has shifted, even as the members
of the opposed coalitions remaining largely, though not entirely, as they have been in the past.
Census categorizations. By collating information about Americans in group terms,
censuses compile the data with which to map group boundaries, measured as percentages of the
population. The process is statistical but also deeply political. Even though traditional racial
discrimination has been rendered illegal, racial classifications still play a central role in public
policies. To enforce anti-discrimination laws, protect voting rights, monitor educational,
economic, and medical progress, and implement affirmative action measures, among other
measures, governments must differentiate among American citizens by race and ethnicity,
principally through the shifting categories specified in the censuses held every ten years (Nobles
2000, Snipp 2003). Many fear, however, that measuring by groups exacerbates racial divisions.
Each recent census and its inter-census published supplements prompts newspaper headlines
about the most salient trends in racial and ethnic group sizes and the policy questions they raise.
How do census categories present hard cases for the four positions of race in
contemporary America? For proponents of race persistence, the endurance of controversies over
29
these categories may seem to prove that little has changed—but they face the difficulty that novel
racial categories are increasingly being advanced. These categories, particularly “multiracial”
designations, have been strongly opposed, however, by those who claim they work to diminish
the numbers and influence of African-Americans. Those debates suggest, against strong
“multiracial” views, that old black/white dichotomies have not been superseded. Still, some
maintain that the debates over new census categories support the “reduced racism” and “liberal
obsession” views. Many Americans are rejecting old racial categories in favor of less invidious
ones, or none at all. The traditional racial categories are supposedly upheld only by white liberals
and civil rights interest groups. Still, “reduced racism” proponents cannot deny that race is very
much alive in these controversies; and they are arguably being stirred not so much by obsessive
liberals as by conservatives and by new groups that might themselves be deemed “special
interests.”
Common to all these positions is acknowledgement that historically, census
classifications were an important means through which governments constructed racial identities.
Few deny today that census categories long served as a linchpin of the white supremacist order,
for the specifications of the degree of African ancestry, as the 1890 census categories of
“quadroons” and “octoroons,” provided the information states used to define eligibility for
various political, legal, and economic rights. Despite the influence of the “one drop of black
blood” policy, state laws long differed in their definitions of whether one needed to be 1/16th,
1/8th, ¼ or more “African” to be “black” (Kennedy 1990, 48-50; Nobles 2000; Davis 1991). The
transformative egalitarian forces that gained power in the civil rights era firmly rejected the uses
to which those census categories had been put in the Jim Crow era, and after 1960 they were able
to persuade federal policy-makers to allow persons to choose their own racial designations on the
census forms, rather than having their race assigned to them by census-takers on the basis of their
phenotypes. That represented a rejection of biological conceptions of race--but not of racial
30
categories, which most Americans still voluntarily assigned to themselves. And civil rights
advocates soon decided that they needed data organized by race to pursue their goals effectively.
A new Federal Interagency Committee on Education was convened in 1964, its
membership drawn from several federal departments, to revise Census classifications so that they
might be used in decisions about the allocation of federal funding in a non-discriminatory way
(Anderson and Feinberg 1999). As transformative egalitarian forces turned increasingly to raceconscious programs, it became increasingly crucial to define the racial identities of Americans in
order to determine eligibility for voting rights protection, educational, employment, and housing
assistance programs, and other benefits. Eventually in 1977, the OMB issued the now-famous
Directive No. 15, specifying four “race” categories: American Indian or Alaskan Native, Asian or
Pacific Islander, Black and White. There were also two “ethnic” identities: Hispanic Origin and
Not of Hispanic Origin (OMB 1977). This 1977 scheme provided the definitional basis under
which groups could seek official recognition to be entitled to group-based federal funds. As
sociologist C Matthew Snipp writes, the importance of Directive 15 “cannot be underestimated,”
for it “established an official racial cosmology for the United States that permeated every level of
government, many if not most large corporations, and many other institutions such as schools and
nonprofit organizations” (2003: 573). Though Census forms permitted more varied designations,
they were organized under these categories, so that Directive No. 15 largely determined and
defined what data are available about race both to policy makers and to scholars.
But by that point, various Latino and Asian American advocacy groups had emerged as
increasingly significant members of the transformative egalitarian order. In 1980 these groups
helped persuade the OMB to extend its directive to include subcategories in the Hispanic and
Asian-Pacific Islander categories. Before the 1990 Census, however, the Bureau of the Census
condensed the specifications under the Asian-American category to save space on the form,
permitting respondents to write in related ethnic or sub-cultural affiliations. This change
disturbed many Asian Americans; many Latinos also felt their identities were not well captured
31
by the four racial categories; and the Census provided further evidence that many Americans
were unhappy with the available categories as well. Roughly a half-million respondents ignored
instructions to mark only one race and selected more than one designation (Lee 2001, 5).
By itself, this number was no so large as to suggest that traditional racial selfcategorizations were ceasing to persist. But the dissatisfactions of many Latino and Asian
American advocates with the census questions came to be joined by some small yet active new
groups, the Association of MultiEthnic Americans (AMEA); A Place for Us (APFU); and Project
RACE (for “Reclassify All Children Equally”). Kim Williams argues that these groups
“consisted predominantly of white women married to black men,” and they wished to win
recognition of their children as having “multiracial,” not “black,” racial identities (Williams, K.
M. 2005, 56). They had some success in winning adoption of the multiracial category at the state
level, where it did not affect federal funding or districting and rarely affected state policies (55).
All these developments prompted OMB to ask Congress to hold hearings and authorize
the agency to explore changes in its racial classification schemes, a process that ran from 1993
through 1997, a period when Democrats controlled the White House but resurgent Republicans
captured control of Congress. The upshot of this reconsideration was that OMB adopted a
somewhat modified set of categories, ‘American Indian or Alaskan Native’ including Central and
South America; ‘Asian’; ‘Black or African American’; ‘Native Hawaiian or Other Pacific
Islander’; and ‘White’; and the ethnic category was: ‘Hispanic or Latino.’’ The OMB refused to
place a “multiracial” box on the Census; but it did decide in October 1997 to permit Americans to
check more than one racial category in the 2000 Census. Then in the election year of 2000, the
agency adopted a tabulation scheme that counted most of those who selected more than one race
as racial minorities for purposes of civil rights laws. About 6.8 million people, 2.4 percent of the
population, eventually chose to list more than one racial identity in that year’s census (Williams
K. M. 2005, 53-54).
32
Offering a qualified blend of “multiracial” and “reduced racism” views, David Hollinger,
among others, argues that this multiplication of racial and ethnic categories signals the emergence
of a “post-ethnic America.” It “favors voluntary over involuntary affiliations, balances an
appreciation for communities of descent with a determination to make room for new
communities, and promotes solidarities of wide scope that incorporate people with different
ethnic and racial backgrounds” (2000: 3). Such interpretations might suggest that the multiracial
controversy signals the breakdown of the “transformative/anti-transformative racial orders”
framework and cannot be explained by it.
We disagree. Whenever Congress has considered new classifications, the opposing
views have remained broadly consistent with the alliances defined by the racial orders
framework. It is true that at the 1993 Congressional hearings convened by the Subcommittee on
Census and Statistics in 1993, the participants included many who wished to see more specific
racial and ethnic identities properly acknowledged. For example, Senator Daniel Akaka’s
testimony about Native Hawaiians was one of a number expressing concerns about counting
Asian-Americans accurately. Under Directive 15, the category of Asian/Pacific Islander included
Native Hawaiians, which obscured the true political and cultural history of the group in Akaka’s
view. Akaka explained that “While culturally Polynesian, we are descendants of the aboriginal
people who occupied and exercised sovereignty in the area that now constitutes the State of
Hawaii. Like the varying cultures among the hundreds of American Indian tribes or Alaska
Natives, Native Hawaiians also have a unique political and historical relationship with the United
States.” 1 The classification of Native Hawaiians as Asian/Pacific Islanders perpetuated “the
misperception that Native Hawaiians, who number well over 200,000, somehow ‘immigrated’ to
1
Testimony of Senator Daniel Akaka. U.S. House of Representatives. Committee on Post Office and Civil
Service. Subcommittee on Census and Statistics. Federal Measurements of Race and Ethnicity. 103rd
Congress, 1st session, July 29, 1993.
33
the United States like other Asian or Pacific Island groups, as well the erroneous impression that
Native Hawaiians, the original inhabitants of the Hawaiian Islands, no longer exist.” 2
All group representatives similarly championed the uniqueness of their group’s identity;
and their testimonies favoring or opposing changes to the classification system reflected their
wedded-ness to a group’s singularity. But most of the calls for change met no resistance from
African Americans and their traditional civil rights allies, for these changes did not threaten and
indeed might strengthen civil rights enforcement or government aid programs. They only posed
concerns about administrative feasibility. Thus even defenders of the extant categories, such as
US Commission on Civil Rights official Arthur Fletcher, recognized that those calling for more
nuanced classifications had a strong case. Fletcher noted that “the current categories are not
adequate for most applications in the civil rights arena, such as civil rights enforcement,
education, and outreach efforts.” 3 Moreover, “the broad race and ethnicity categories established
by Directive 15 conceal extraordinary diversity in the characteristics and civil rights status of the
distinct groups composing these categories. Within each of the major race categories and within
the Hispanic population, there appear to be major differences in the nature and extent of
discrimination as revealed by key socioeconomic outcomes.” 4 Traditional civil rights advocates
did not oppose recognizing those differences, though they did resist expanding the list of “races”
in ways that might place those they considered white in the category of beneficiaries of racial
preferences. Thus Latinos have had success over time in getting the census modified to obtain for
their broad group the extensive demographic detail provided for African Americans; but their
efforts to be designated a race rather than an ethnic group have not borne fruit (Rodriguez 2000).
In the 1990s, most members of the transformative egalitarian order did, however, see the
movement to create a multiracial box on the census forms as a threat to traditional civil rights
2
Ibid.
Testimony of Arthur Fletcher. U.S. House of Representatives. Committee on Post Office and Civil
Service. Subcommittee on Census and Statistics. Federal Measurements of Race and Ethnicity. 103rd
Congress, 1st session. November 3, 1993.
4
Ibid.
3
34
programs—and they almost unanimously opposed it, while conservative Republicans championed
it, consistently with the “racial orders” framework. Starting in 1993, Republican Representative
Thomas Petri of Wisconsin began introducing bills to require OMB to adopt the multiracial
category (which he came to call the “Tiger Woods” bill) (Williams K. M. 2005, 56-57). In the
1993 hearings on census categorizations, an OMB official, Norman Cantu, reflected the concerns
of many civil rights advocates about such proposals. He contended that the innovation might
assuage the concerns of parents of mixed-race children, but it would do little to help the Office of
Civil Rights compliance activities, while also creating “a number of technical problems for
OCR's data collections, and increasing both data collection costs and data burden on
respondents.” 5 Billy Tidwell of the Urban League argued similarly: “I am concerned about the
potential impact of such a modification on the representation of ‘Blacks’ or African Americans
and, consequently, on the previously alluded to gains that have accrued to them under the existing
reporting system. It would be an unfortunate circumstance, indeed, if changes in census data
collection methodology effectively turned the clock back on the well-being of a group that has
had such distinctive and profound experiences with exclusion and deprivation in this society.” 6
Experts who monitored discrimination and implement federal affirmative action policies joined
with the Urban League. Some argued that multiracial categories might create problems in
determining discrimination, because victims might be assigned inappropriately to a particular
group. Arthur Fletcher concluded: “the existing racial and ethnic groups are extremely diverse. A
multiracial category would be even more so.” 7 In 1997, with the Executive Branch in
Democratic hands, a federal task force representing 30 agencies sided with traditional civil rights
groups to oppose the multiracial category (Holmes 1997a).
5
Testimony of Norma Cantu. U.S. House of Representatives. Committee on Post Office and Civil Service.
Subcommittee on Census and Statistics. Federal Measurements of Race and Ethnicity. 103rd Congress, 1st
session. November 3, 1993.
6
Testimony of Billy Tidwell. U.S. House of Representatives. Committee on Post Office and Civil Service.
Subcommittee on Census and Statistics. Federal Measurements of Race and Ethnicity. 103rd Congress, 1st
Session. July 29, 1993.
7
Fletcher, supra note 6.
35
But that same year, Republican House Speaker Newt Gingrich responded to the Clinton
administration’s efforts to sustain alliances with civil rights groups by advocating a 10-point
program on racial issues that included ending affirmative action, adopting school vouchers, and
adding the multiracial category to the Census. He contended, “Ultimately our goal is to have one
classification—American” (Holmes 1997b). Gingrich contacted Franklin Raines, head of OMB,
to pressure the agency to make this change and also promised legislation to bring it about.
Gingrich was supported by the Libertarian Party, which similarly hoped that with increased use of
this novel category, “the politicians’ framework for American Apartheid would crash to the
ground” (Hochschild and Burch 2004, 25).
With very few exceptions, however, Latino, Native American, and Asian American
advocacy groups joined with African American spokesmen to oppose adding a multiracial option;
the Japanese American Citizens League was the only mainstream civil rights group that supported
the change, while groups like the National Council of La Raza, Asian Americans for an Accurate
Count and the Asian American Legal Defense Fund refused to do so. Representative John
Conyers was the only African American member of Congress to back the category; the opposing
multiracial advocacy groups were small and predominantly white-led (King 2000, 204-205;
Williams K.M. 2005, 59; Hochschild and Burch 2004, 26-28). It was the increased power in
Congress of conservative Republicans that provided the greatest leverage on behalf of the
multiracial option, and these Republicans understood as fully as the civil rights proponents that
this change might well weaken existing measures designed to improve the political, educational,
and economic position of, especially, African Americans. With a Democrat in the White House,
the movement was able to achieve only a watered-down version of its objective, in the form of
the option to check multiple boxes while being counted as a racial minority. But this change still
represented a victory for largely familiar members of the anti-transformative alliance, joined by
only a few non-white advocates, arrayed against most of the membership of the modern
egalitarian racial order.
36
Vouchers. In 1955, economist Milton Friedman published a then-radical argument for
giving all families vouchers of equal worth for each school-age child, to be used for at least
partial financing of education at any school meeting very minimal state requirements (Friedman
1955). Friedman’s advocacy was of a piece with his general philosophy in favor of market
systems driven by individual choices, and so it appeared largely disconnected with racial
concerns. But four years later, Prince Edward County in Virginia closed its public schools to
avoid court-ordered desegregation and provided parents with vouchers that they could use, if they
chose, to attend private academies. Whites used them to attend segregated schools; blacks largely
refused them and many received no education for five years (Wilkinson 1979, 98-100).
This ugly example curtailed interest in Friedman’s idea for nearly three decades. But
with Ronald Reagan’s election in 1980, market-oriented solutions gained broader appeal. In 1989,
Milwaukee, Wisconsin pioneered a “Parent Choice” voucher program sponsored in part by an
African American Democrat, State Representative Annette “Polly” Williams (Lowe 1993). At
the same time political scientists John Chubb and Terry Moe published Politics, Markets, and
America’s Schools, a brief for voucher systems. Other than contending that race was not
associated with student achievement, that book did not devote much attention to the racial
dimensions of public education (Chubb and Moe, 1990, 126-127). But it and a surge of related
scholarship provided further impetus to many kinds of “school choice” initiatives, a propensity
reinforced by the Court in Zelman v. Simmons-Harris (536 U.S. 639 [2002]), which upheld
Cleveland’s voucher plan against contentions that it improperly aided parochial schools.
This brief summary suggests why the issue of vouchers is a “hard case” for all four of the
perspectives on race considered here. Proponents of the “reduced racism” thesis can point out
that much debate over vouchers centers on aid to religious schools, and that polls do not show any
sharp racial divide concerning vouchers. Though different questions generate different responses,
blacks and Latinos seem to support vouchers as much or more than whites, and some leading
voucher advocates are black and Latino urban leaders (Leal 2004, 1227-1228; Pinzer 2003). The
37
fundamental divide is commonly portrayed as being between supporters of parochial schools,
inner city parents, and those philosophically committed to personal choice, on the one hand, and
secularist civil liberties activists, teachers unions, administrators, and those committed to more
statist approaches to public problems on the other (Kennedy 2001; Godwin and Kemerer 2002,
228-233; Fusarelli 2003, 4).
Yet everyone also understands that, from the Prince Edward County experiment on, some
of the main questions about vouchers are whether they represent efforts to escape public schools
affected by desegregation efforts and whether they will heighten racial inequalities. Though
People for the American Way is concerned strongly with religious establishment issues, it joined
with the NAACP to combat vouchers and pursue other educational goals via “Partners for Public
Education.” The partnership now includes many leading Latino advocacy groups (Godwin and
Kemerer 2002, 231; School Success Info.org). On the other side, Terry Moe published an
analysis of public opinion in 2001 stressing findings of substantial African American and Latino
support for vouchers and portraying those groups as chief beneficiaries of voucher systems (Moe
2001). These facts suggest that race has mattered and still matters greatly in the voucher debates
and other school controversies (Henig, Hula, Orr, Pedescleaux 1999, 6-7).
Conversely, advocates of “persistence” perspectives have to confront the reality that from
Polly Williams to D.C. Mayor Anthony Williams, many African-American urban leaders have
been key instigators of voucher systems. They must also acknowledge that for many, the school
choice controversy does seem to be about ideological commitments on the role of government;
pragmatic judgments of feasibility; teacher interests; or views on separation of church state
issues, not race. Hence, “liberal obsession” proponents can correctly portray secular liberals,
civil rights groups and teacher unions as most vocally insisting that school vouchers nonetheless
should be seen as a racial issue. But they also have to confront the reality that, whatever the
opinion polls say, African Americans and Latinos oppose vouchers when voting in referenda on
38
them, as much or more than whites, and have done so after campaigns focused on potential
racially inegalitarian consequences of vouchers. Those concerns appear to have resonated.
Finally, advocates of “multiracial” perspectives stress that when they can, Hispanics
avoid schools with high concentrations of African Americans just as whites do, and that some
Hispanic advocacy groups promote vouchers, though most oppose them (Godwin and Kemerer
2002, 120-121). Yet though these facts show, again, that we do indeed need multiracial analyses,
it also underscores how “blackness” continues to be especially important in American politics and
policies with racial dimensions. In sum, each of these perspectives on race in American faces
certain features in current voucher controversies that do not easily fit their accounts.
Can we see the sorts of “racial order” alliances over vouchers that we do on other
contemporary racial issues? The basic answer, again, is yes. Despite the real complexities raised
by polling data and the existence of conflicting advocacy groups within the same sectors of the
population, the hard evidence of how Americans are aligned when it comes time to decide on
voucher programs largely conforms to the patterns discerned elsewhere. The distinctive feature
in this area is that “anti-transformative” forces are not united on the desirability of vouchers, so
that advocates have had to adopt indirect legislative strategies in order to win enactments.
Voucher initiatives are primarily sponsored by state and national Republican legislative
and executive officials in alliance with conservative Christian religious groups, especially
Catholics in this context; with free market business interests and conservative advocacy groups;
with many white voters, some of whom continue to have desires to escape low-performing public
schools with largely non-white student populations; and with some Latinos and Asian Americans
holding similar concerns. Voucher initiatives are opposed by most Democratic state and national
office-holders; most African American and Latino civil rights groups; most church-state
separationists and liberal policy groups; and, importantly, most non-white voters. Asian
American voices can be found on both sides of the issue, but it has not been a major concern of
39
leading Asian American political spokesmen or advocacy groups. It is possible that African
Americans, Latinos, and Asian Americans are unusually divided on this issue, but that is unclear.
The key difficulty for voucher advocates is that white suburban parents often see little
benefit to themselves from such systems, so they are often the pivotal group that must be won
over for vouchers to succeed. These white voters have a range of motives. Many may wish for
public funds to be devoted to or perhaps increased for existing urban schools. But because most
live in areas with schools that are currently overwhelmingly white and comparatively wellfunded, many see little direct benefit to themselves or their children from programs that could
take funds away from those schools and open them up to at least some inner-city non-white
students. If at least some whites support vouchers because they believe parents should have the
option of removing students from predominantly non-white or even extensively integrated
schools, then, others oppose them out of satisfaction with existing de facto patterns of
segregation. This division among “anti-transformative” voters, along with other reasons for
opposition, means that vouchers have lacked mobilized popular support. But even though
suburban whites, especially, and sometimes urban non-whites can be “swing” constituencies for
pro- or anti-voucher coalitions, on balance the contrasting alliances active on vouchers are much
what they are on other racially-tinged issues.
The sharpest evidence to the contrary comes in polling data. The Joint Center for
Political and Economic Studies, led by distinguished black scholars, has for some years found
that a majority of African Americans support school vouchers and do so in higher percentages
than the general population. Phi Delta Kappa/Gallup poll results paint the same picture, and polls
also show strong Latino support (Street and Kaas 2002; Leal 2004, 1227-1228; Fusarelli 2004, 4).
But the Joint Center results also indicate that most respondents, including most that support
vouchers, acknowledge that they know “very little” to “nothing” about vouchers. Analysts on all
sides agree that voucher poll results are in consequence greatly influenced by question wording
and by the alternatives for school reform listed (Street and Kaas 2002, 4; Leal 2004, 1230).
40
The poll data appear all the more questionable in light of the fact that in the eight state
referenda on vouchers held from 1972 to 2000, whenever voters directly voted on voucher plans,
they rejected them by large margins, usually 64% to 74%. The aggregate vote was 68% against,
32% for, almost the reverse of typical opinion poll results (People for the American Way). In the
two most recent referenda, held in 2000, exit polls indicated that in California 68% of African
Americans, 77% of Latinos, 66% of Asian Americans, and 70% of Anglo voters opposed
vouchers, while in Michigan 77% of African Americans and 69% of whites voted against them
(Leal 2004, 1228). Again, the large white vote against vouchers is probably traceable in part to a
divide among those opposed to active pursuit of more racially equal and integrated schools over
whether vouchers would help or hurt, though we cannot estimate how large a role these
considerations play. But in the wake of these crushing results, voucher advocates have stopped
trying to win via popular referenda. They have shifted chiefly to legislative strategies in which
vouchers are added to broadly appealing omnibus education bills (Fusarelli 2003, 147).
And even though vouchers have failed to garner much popular support when placed
directly before the voters, legislative efforts to adopt them are on the rise, with some signal
successes. That fact underlines how important the control of policy-making institutions by an
alliance is. If Republicans did not dominate Congress and many state legislatures, vouchers
would not be on the public agenda. And because Republican legislators support vouchers much
more frequently than many of their white suburban constituents, the alliances that are promoting
and opposing school vouchers map more clearly onto our delineations of the contemporary antitransformative and the transformative egalitarian racial orders than mass opinion does.
It was a white Texas Republican, House Majority Leader Dick Armey, who began
seeking to add vouchers to the Bush administration’s general education package in 2001, though
initially without success (Common Dreams 2001). Voucher proponents also then began trying to
show that they had support from non-white publics and their advocacy groups like the Black
Alliance for Educational Options (BAEO), founded in 2000, and the Hispanic Council for
41
Reform and Educational Options (CREO), founded in 2001. Rather than continuing to argue in
non-racial terms, advocates increasingly contended, as Moe did that year, that vouchers were the
best system to aid long-disadvantaged racial and ethnic minorities. But critics noted that the
conservative Bradley Foundation and Walton Family Foundation heavily funded the BAEO, in
just the way the Bradley Foundation had backed the initial Milwaukee voucher plan in 1989 (The
Black Commentator 2002). CREO, also supported by those same foundations, is by its own
account a D.C.-based lobbying group founded by a small number of wealthy Hispanics unhappy
because most Latino advocacy groups opposed vouchers (Hispanic Council for Reform and
Educational Options 2005).
In contrast, the NAACP/People for the American Way’s joint anti-voucher campaign
claims partnership with the League of United Latin American Citizens (LULAC), the Mexican
American Legal Defense Fund (MALDEF), the National Black Child Development Institute, the
National Council of La Raza, and more (School Success Info.org). There can be little doubt that
the leading non-white advocacy groups are working together against vouchers and winning with
their voters, while the small black and Hispanic groups who champion vouchers rely heavily on
support not from their communities but from conservative, predominantly white foundations.
Even so, proponents of vouchers recently had one major success at the national level. In
September 2003, by a narrow 205-203 vote, the U.S. House of Representatives approved the
“D.C. Parental Choice Incentive Act,” a voucher plan offered as an amendment to the D.C.
Appropriations Act (Office of the Clerk 2003). The Senate subsequently overwhelmingly
approved the D.C. Budget as a whole, including the voucher program. Success came only after
D.C. Mayor Anthony Williams, the school superintendent, and a leading Council member
endorsed the voucher proposal, thereby legitimating it as supported by local African American
leadership. But most on the D.C. Council still opposed it, and D.C.’s non-voting delegate to
Congress, Eleanor Holmes Norton, sharply criticized the plan and denied it had widespread local
African American support. The Bush administration responded by lobbying strongly for the bill,
42
presenting it as a key test of party loyalty (Associated Press 2003; Hsu 2004). In the House,
voting ran almost wholly on party lines, with only 4 Democrats voting with the 201 Republicans
who supported the plan, and only 14 Republicans voting against it. All African American
members of Congress opposed it, as did most of the 26 Hispanics then in the House, though 2
Hispanic Democrats provided half of the supportive Democratic votes, and all of the 3 Hispanic
Republicans voted in its favor (Clerk of the House 2003; Hunter 2003). It may be said, then, that
this important national victory for vouchers came with the aid of an African American urban
leader and Hispanic legislators from both parties. But the overwhelmingly reality remains that
this was a GOP measure, introduced by a Virginia Republican, Tom Davis, and vigorously
opposed by virtually all Democrats, African Americans, and Latinos in the Congress. Because
Republicans controlled the House and Senate, they carried the day.
But even if these alliances look familiar, it may still be said that it is improper to include
school vouchers as an issue favored by the “anti-transformative” racial order in contemporary
America. Voucher champions are, after all, proponents of a rather radical transformation, and
one that for many of its proponents is not chiefly about preventing erosion in traditional racial
systems of inequality. It may be true that Prince Edward County adopted a voucher plan as a new
means to preserve traditional all-white schools, but whatever the limitations of survey research, it
provides little indication that overt racism is driving parental decisions in systems with school
choice today. Voucher systems have in fact operated to make at least some predominantly white
schools more integrated than they were before.
Yet those same data do indicate that parents tend to flee predominantly African American
schools; so that even if some private white schools gain a few students of color, on the whole
school choice systems replicate the severe patterns of segregation that characterize many
American public schools today, while making those patterns more immune to judicial
interventions. At worst they heighten racial segregation (Godwin and Kemerer 2002, 120-126).
And insofar as voucher systems result in non-white students in predominantly African American
43
schools shifting into predominantly white private schools, they also necessarily transfer resources
away from predominantly African American and Latino public schools into white institutions.
Either way, it is clear that whatever their long-term benefits, the short-term effects of voucher
systems are either to exacerbate public school segregation or to reduce resources for
predominantly non-white public schools or, perhaps most often, to do both.
Those stark facts place vouchers among the types of policies favored by today’s antitransformative racial order. And as we have seen, the members of that order, including
Republican officeholders, market-oriented advocacy groups and foundations, and conservative
religious groups, are also in fact the most prominent and persistent champions of these policies.
As in each of our “hard cases,” there are some variations visible. Here those variations are the
heightened centrality of churches operating parochial schools; the limited and rather over-played
support of some African Americans and Latinos for vouchers; and, most importantly, the strong
opposition of most suburban white voters to vouchers, the fact that has driven proponents to
legislation rather than referenda to gain enactments. Because voucher plans have the potential to
affect not only inner city schools but also predominantly white and more affluent suburban
schools, we have suggested that this opposition may reflect to some degree a division in “antitransformative” ranks about whether this change in public school systems affected by past
integration efforts will benefit whites. The “racial orders” analysis exposes how such internal
tensions can foster different political strategies and policy outcomes in varying issue areas.
Nonetheless, in the legislative struggles that are the main arena of the voucher issue
today, the alliances are much the same as they are on other contemporary racial issues. And it is
the institutional centerpiece of the modern anti-transformative racial order, Republican control of
state and national legislatures, that accounts for the slow but continuing progress of this
controversial policy.
Conclusion. Hard cases, that is, empirical instances which lie outside anticipated patterns, are
significant for any typology or analytical framework. Their pertinence for race politics in
44
contemporary America is unusually deep, since it is plain that in America, transformation to
racial equity is incomplete. If these “hard case” signal that the nation’s traditional racial orders
are giving way to substantially new configurations, the quest for equity in the future is likely to
look very different.
Our argument here is that this judgment is at best premature. In each of our cases, we can
indeed find evidence that challenges all four of the influential approaches to race in contemporary
political science, including the “racial orders” framework we endorse. Yet though racial politics
are complex and varied, all the more so today because of the greater variety of politically engaged
racial and ethnic groups in contemporary America, the basic political patterns continue to be well
captured by recognizing the existence of two potent racial orders, one opposed to conscious
efforts to redistribute status, power and resources to non-whites in order to achieve greater parity
with whites, one supportive of policies that seek to do so. Those patterns are likely to persist as
long as systematic racial inequalities persist. Overcoming them remains the hardest case of all.
1
We are grateful to Kahlil Williams for his invaluable research incorporated into this essay.
The count is 17 new black Congress members, 13 from southern states, if we count Eva
Clayton, elected in a special election in 1992 from North Carolina’s First District on the death of
Walter Jones.
2
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