WOULD MARTIN LUTHER KING HAVE EMBRACED “EQUITY,” OR WOULD HE HAVE SEEN IT AS INJURIOUS TO HIS COLOR-BLIND DREAM OF TRUE EQUALITY?
INTRODUCTION
When on April 4th, 1968, Dr. King was assassinated, the full progress and effects of the Civil Rights Act of 1964 had little time to ingrain in American regulatory and jurisprudential life. Titles VI and VII had yet to ripen into powerful tools to address the unequal treatment of individuals based upon race, color, religion, and other suspect classifications. He had yet to see that, with time, the claim that the United States was “systemically racist” would ultimately ring hollow and that a burgeoning African American middle class would emerge given those protections. His influence in the political movement persuaded then President John Kennedy to pledge the passage of a comprehensive civil rights bill that President Lyndon Johnson ultimately signed on July 2nd, 1964. Senators Al Gore Sr., Robert Byrd (Biden’s buddy), and J. William Fulbright unsuccessfully tried to filibuster the Act. The years following its passage, however, were controversial, with some business owners in the South resisting its public accommodations clause and claiming that they still did not have to serve black travelers in their hotels and restaurants. The U.S. Supreme Court struck down their Jim Crow-tinged challenge. As late as 1968, African American students attempting to desegregate a bowling alley were shot and killed by South Carolina police on the campus of South Carolina State College. Dr. King experienced this horrific action in his beloved South only two months prior to his own violent and senseless death. His work was not done.
Fast forward a generation or two, however, and public sentiments as well as the volatile race politics of the South have changed significantly. The Voting Rights provisions of the 1964 Act were severely curtailed by the Supreme Court in 2013, as it was now the norm that African Americans in southern states had significant engagement in the political process, were in office in record numbers, and the stains of the past placing barriers to the black vote had long since been cast into extinction. The notion that public accommodations could be limited to whites or that public schools would be segregated is now unthinkable and has been for some time. Biracial marriages are commonplace. Dr. King did live to see Loving v. Virginia, 388 U.S. 1 (1967) strike down laws banning interracial marriage but doubtless wondered what took so long. The world would change.
DR. KING’S WORDS SUGGEST THAT “EQUITY” AND THE MANNER WITH WHICH IT HAS BEEN IMPLEMENTED DAMAGES THE TRUE EQUALITY HE DREAMED OF
I doubt that Dr. King was a constitutional scholar, but his innate intellect drove him toward the Enlightenment view of entrance into civil society and what that entailed for the individual after the second founding and the Thirteenth and Fourteenth Amendments. While decrying the disparate treatment that he grew up with and continued to see, he knew of the superiority of individual merit and traits over racial quotas and dividing people based upon race. This is inherently wrong. Supreme Court Justice Clarence Thomas, whose concurrence in the affirmative action decision involving Harvard and UNC we will discuss below, wrote forcefully:
“All racial groups are heterogeneous, and blacks are no exception—encompassing northerners and southerners, rich and poor, and recent immigrants and descendants of slaves. Eschewing the complexity that comes with individuality may make for an uncomplicated narrative, but lumping people together and judging them based on assumed inherited or ancestral traits is nothing but stereotyping.”
In fact, Justice Scalia only recognized one race—“American.”
We divine these views from some of Dr. King’s most powerful words:
“…I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character…”
“… in the non-violence army there is room for everyone who wants to sign up, there is no color distinction …”
“segregation is a cancer on the body politic which must be removed before our democratic health can be restored…”
The core tenets of DEI—Diversity, Equity, and Inclusion—are the rejection of these principles. The use of race and the pledge to embrace “equity” while emphasizing the very differences that Dr. King tried to erase is in direct contradiction to what he envisioned. A peaceful and harmonious society where equality of opportunity would be based upon individual traits, not on the immutable character of one’s skin. University safe spaces and segregated housing for different races and religions would doubtless shock him. How would he view Dr. Kendi’s repudiation of the Equal Protection Clause by declaring that only “future discrimination is the remedy for past discrimination” and attempting to embed that into our law and customs. It is ok to discriminate because seven generations ago slavery existed? Generations later, a white student should be denied admission, or a job opportunity, or a small business loan because generations ago slavery was permitted to exist. Dr. King doubtless knew that such views would foster division and bitterness and tarnish the true accomplishments of a black student based upon merit to be dismissed as institutional charity.
JUSTICE CLARENCE THOMAS CAPTURED, I BELIEVE, THE FULL INTENT OF THE FOURTEENTH AMENDMENT’S COMMANDS IN A MANNER THAT WOULD MEET WITH DR. KING’S APPROVAL.
One of the most controversial issues surrounding the Fourteenth Amendment’s promise of equal protection of the laws was the tension between that command born in the second founding of 1868 and the race-based admissions policies of colleges and universities. Challenged since the 70’s the “diversity goals” of admissions officers were poorly disguised discrimination. From the 30’s with the exclusion of Jewish students, to the modern exclusion of Asian American and white students in favor of students of color, the issue of true equality under the law and for opportunity was periodically tested with less than clear results. In Students for Fair Admissions Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023), the Supreme Court finally declared that policies such as those of Harvard, and in a related case, the University of North Carolina, did indeed violate the Equal Protection Clause. In a compelling concurring opinion, Justice Thomas, long a critic of the affirmative action framework, was eloquent. His words come from an African American justice who survived the “high-tech lynching” of Senator Joe Biden’s mean-spirited and frankly idiotic confirmation hearings. He destroyed Justice Jackson and Justice Sotomayor’s lip service to the past and the tired “systemic racism” and “leveling the playing field” rhetoric. He began with history.
“In the wake of the Civil War, the country focused its attention on restoring the Union and establishing the legal status of newly freed slaves. The Constitution was amended to abolish slavery and proclaim that all persons born in the United States are citizens, entitled to the privileges or immunities of citizenship and the equal protection of the laws. Amdts. 13, 14. Because of that second founding, our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”
He went on to establish the color-blind nature of what the text of the Fourteenth Amendment declared:
“In the 1860s, Congress proposed and the States ratified the Thirteenth and Fourteenth Amendments. And, with the authority conferred by these Amendments, Congress passed two landmark Civil Rights Acts. Throughout the debates on each of these measures, their proponents repeatedly affirmed their view of equal citizenship and the racial equality that flows from it. In fact, they held this principle so deeply that their crowning accomplishment—the Fourteenth Amendment—ensures racial equality with no textual reference to race whatsoever. The history of these measures’ enactment renders their motivating principle as clear as their text: All citizens of the United States, regardless of skin color, are equal before the law.”
Here, he goes after Justice Jackson’s tired attempt to return to the past:
“Rather than focusing on individuals as individuals, her dissent focuses on the historical subjugation of black Americans, invoking statistical racial gaps to argue in favor of defining and categorizing individuals by their race. As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today. The panacea, she counsels, is to unquestioningly accede to the view of elite experts and reallocate society’s riches by racial means as necessary to ‘level the playing’ field, all as judged by racial metrics.
First, as stated above, any statistical gaps between the average wealth of black and white Americans are constitutionally irrelevant. I, of course, agree that our society is not, and has never been, colorblind. People discriminate against one another for a whole host of reasons. But, under the Fourteenth Amendment, the law must disregard all racial distinctions.
In view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.
With the passage of the Fourteenth Amendment, the people of our Nation proclaimed that the law may not sort citizens based on race. It is this principle that the Framers of the Fourteenth Amendment adopted in the wake of the Civil War to fulfill the promises of the Thirteenth Amendment and the abolition of slavery.”
CONCLUSION
Dr. King did not live to see our post-1964 society mature and settle into a color-blind view of race relations and the final fulfillment of the promise of the Thirteenth and Fourteenth Amendments. We hold the door in our favorite convenience store for our brothers and sisters of color and render a race-neutral “good morning.” We serve together in the military, and we stand side by side in every endeavor, both secular and spiritual. What diverted us was the race baiters who utilized the isolated instances of George Floyd and Michael Brown to enrich lobbying groups like BLM who exist to foster racial divide and propagate lies. An entire industry was built upon the emphasis on racial differences and “white privilege”. Martin Luther King would have decried the backslide into racial division. He died for what he believed, and he foresaw his violent end in a racially and politically divided period of our history. BLM bought mansions.
Mike Imprevento
January 2025
