Recently, when giving lollipops to two of my grandsons, the youngest said, “Papa, you gave my brother a lollipop yesterday and I didn’t get one. Can I have two today?”  Before I could respond, his older brother replied, “That wouldn’t be fair.”  Without any thought, I sided with my oldest grandson and said, “What happened yesterday doesn’t matter. Today, you both get one lollipop.”

I’ve thought a lot about that exchange, especially in the days since the Department of Justice announced an investigation of colleges and universities for discrimination against white students in admissions. In essence, the Department of Justice hopes to reverse the practice of affirmative action and its goal of increasing the number of people of color in higher education.  Critical of this decision, I’ve wondered if I handled the situation with my grandsons correctly.  My response to my younger grandson was remarkably similar the attitude of the Department of Justice.  What happened in the past doesn’t matter.  Equality is only measured by what is happening today.

At least in the situation with my grandsons, the inequality between the number of lollipops was merely happenstance. I love my grandsons and have always treated them both generously.  If my younger grandson had been with me the previous day, I would have given him a lollipop.  Unfortunately, if we’re talking about racial discrimination, there is a mountain of evidence that not all of Uncle Sam’s nephews and nieces have been treated with equal generosity.  If lollipops represent the resources our nation has allocated for specific groups, we who are white have been given far more lollipops than others.  In such circumstances, what does fairness look like today?

Like many people in the United States, my two grandsons disagreed on what equality should look like. The younger, aware of a historic inequality, was asking me to rectify an injustice.  He was arguing that equality could be measured over two days as easily as over one.  The oldest, aware of an immediate inequality, was demanding a judgement limited to the present moment.  He made his complaint of injustice even though he knew that – when measured over two days – he would be the recipient of one more lollipop than his brother.

My oldest grandson’s strategy is one of the pillars of systemic racism. When we who are white argue that what happened in the past doesn’t matter, we are not arguing for equality and fairness; we are defending our advantage.  When we say college admissions should be administered blindly today, we are intentionally ignoring the historic reality that Lady Justice was peeking from behind her blindfold in the past.  Though she systemically denied justice and opportunity to minorities for centuries, we act as if those facts are irrelevant.  Everyone should be judged by their merits.

However, when this argument is judged by its merits, it fails horribly.  Limiting the measure of equality to the present is an arbitrary decision.  In criminal cases, our courts often address past injuries.  Indeed, for some serious crimes, there is no statute of limitations.  Sadly, our unwillingness to address past racial injustices implies we don’t see these injustices as serious or criminal.

Equality without a memory is almost always unjust.  Once Lady Justice peeked from behind her blindfold to deny people of color of their rights, she can’t escape behind it when they complain.  Pretending there is a level playing field is a lie designed to protect white privilege.  A Department of Justice that suddenly requires colleges and universities to be completely objective makes a mockery of what it purportedly defends – justice.

My younger grandson’s plea for a second lollipop represents the legitimate complaint of people of color across America. He knew – probably because his brother proudly announced it – that his older brother had received something he had been denied.  Confronted with an obvious opportunity for that injustice to be rectified, he made a fair request – give me what I was previously denied.  He hoped that his grandfather would see the righteousness of his appeal.

I failed him.

I wish I could say I denied him a second lollipop because I didn’t want him to ruin his dinner, but that wouldn’t be true. I chose to give each grandson one lollipop, not because that was just, but because that was easiest.  I knew, once my older grandson complained, that to give my younger grandson a second lollipop would result in a conflict.  Once he proclaimed, “That wouldn’t be fair,” I was cowed.  Limiting equality to the present moment was the easiest decision.

I lied to my youngest grandson.

What happened yesterday does matter, especially when we’re talking about centuries of slavery, the genocide and marginalization of the Native Americans, decades of Jim Crow, the exploitation of migrant workers and countless other injustices.  While it is certainly easiest to limit equality to the present moment, it is seldom just.  When our courts try to ignore the past, they nearly always multiply its injuries.

I wish my older grandson had responded to his younger brother’s request with kindness. If he’d said, “Papa, he’s right. He should get two lollipops,” I would have quickly agreed to their request for restitution.  When this didn’t happen, I did what our legislatures and courts have done for far too long.  I took the easiest route, the one least likely to solicit the complaints of those who have previously had the advantage.  I missed an opportunity to teach my grandsons about the complexities of justice.

I don’t know what the courts will do when the Department of Justice challenges the practice of affirmative action, but I fear they will do what I did. They will weigh the resentful complaints of white people and do what is easiest.  They will limit justice to the present moment rather than do the far more difficult work of trying to remedy their past indiscretions.  They will pull the blindfold tight in order to avoid seeing the obvious – their complicity in injustice.

Thanks to my grandsons, I see my responsibility. I need to do what I would have wished of my oldest grandson. I will advocate for an application of justice that is  measured by decades and centuries.  I will acknowledge the legitimacy of calls for some kind of restitution.  I will say, “They’re right.  They deserve more lollipops.”

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