THE LAW: "Black Americans, rejoice! Racial Discrimination has now become illegal."
BLACK AMERICANS: "Great, we who have no jobs want them. We who have lousy jobs want better ones. We whose kids go to Black schools want to choose integrated schools if we think that would be better for our kids, or want enough money to make our own schools work. We want political power roughly proportionate to our population. And many of us want houses in the suburbs."
THE LAW: "You can't have any of those things. You can't assert your claim against society in general, but only against a named discriminator and you've got to show that you're an individual victim of that discrimination and that you were intentionally discriminated against. And be sure to demonstrate how that discrimination caused your problem, for any remedy must be coextensive with that violation. Be careful your claim does not impinge upon some other cherished American value, like local autonomy of the suburbs, or previously distributed vested rights, or selection on the basis of merit. Most important, do not demand any remedy involving racial balance or proportionality; to recognize such claims would be racist."—Alan Freeman, Legitimizing Discrimination Through Antidiscrimination Law: A Review of Supreme Court Doctrine (1978)
There has been a lot written this week since Schuette v. Coalition to Defend Affirmative Action by Any Means Necessary (BAMN) was decided by the Supreme Court on Tuesday. For those few who don't know, Schuette upholds as constitutional the "Michigan Civil Rights Initiative", (Proposal 2) passed in 2006, which eliminated the power of institutions to take race or gender into account in higher education, contracting and other contexts. Far better writers than I have parsed, analyzed and quoted the decision itself and, especially, the scathing dissent read from the bench by Justice Sonia Sotomayor. Thus, this essay isn't going to do much of that. It's going to, instead, focus on the meta-messaging underlying Schuette, and show that decisions such as Schuette are merely the end-game of a restructuring of the scope of the Fourteenth Amendment from a law protecting the rights of black people in America (and later, others) against efforts to keep them subjugated to a law protecting the rights of white people against black people (and other people of color) seeking to obtain the actual benefits of equality.
This end game was identified, and warned against, nearly 40 years ago.
The majority opinion in Schuette is comparatively short considering the nuclear impact of the decision, perhaps because it is grounded in one of the most obvious rewritings of history in recent SCOTUS memory. Essentially, the plurality in Schuette is able to uphold Michigan's Proposal 2 only by pretending that its own decisions didn't mean what they said overtly they meant: the political majority (whites) cannot use the political process to limit the right of insular minorities to seek remedies for the effects of discrimination, whether or not race was affirmatively mentioned as the reason for the majority's political decision. The Roberts court's dismissal of the overlapping and underlying facts that led to the Burger Court's decision in Washington v. Seattle School District #1 and the Warren Court's decision in Hunter v. Erickson—SCOTUS precedents which had each rejected the proposition that a ballot measure could be created to limit the availability of remedies designed to ameliorate racism and, in particular, segregation—was breathtaking.
The facts of each of these precedents made clear that they were squarely on point. For example:
In 1978, Seattle School District No. 1 (District) enacted the so-called Seattle Plan for desegregation of its schools. The plan makes extensive use of mandatory busing. Subsequently, a statewide initiative (Initiative 350) was drafted to terminate the use of mandatory busing for purposes of racial integration in the public schools of the State of Washington. The initiative prohibits school boards from requiring any student to attend a school other than the one geographically nearest or next nearest to his home. It sets out a number of broad exceptions to this requirement, however: a student may be assigned beyond his neighborhood school if he requires special educational programs, or if the nearest or next nearest school is overcrowded or unsafe, or if it lacks necessary physical facilities. These exceptions permit school boards to assign students away from their neighborhood schools for virtually all of the nonintegrative purposes required by their educational policies.Similarly, in Hunter, the Court was faced with a city charter amendment passed by the voters in Akron, Ohio, overturning that city's fair housing ordinance and prohibiting adoption of any future law by the city council addressing racial, religious, or ancestral discrimination in housing without the approval of the majority of the voters of Akron.
SCOTUS both times recognized that the laws—although stated in racially neutral terms—were adopted to prevent minorities from achieving equality and struck them down. With feeling.
Given the firmness with which SCOTUS in Seattle and Hunter stated that the white majority could NOT use the political process to limit the rights of people of color to access remedies designed to ensure substantive equal protection, it is clear the Schuette majority is self-deluding or cruel or both for glibly saying, as it did, that the "democratic majority's decision about the need to take race into account in college admissions needs be respected."
But all of this is exactly as intended by Jennifer Gratz, the spoiled-fuckin'-brat whose failure to get into University of Michigan Ann Arbor's campus (ranked 28th per U.S. News and World Report was the driver behind Michigan's Proposal 2. For those who have forgotten her, Gratz was the successful plaintiff in the first case since Bakke v. Regents of the University of California which overtly stated that higher education affirmative action discriminated against whites, Gratz v. Bollinger. In that case, Gratz led the charge to strike down the "points bonus" that students from historically oppressed racial minorities earned on their applications after she was rejected from UoM's flagship campus, Ann Arbor. SCOTUS gave Gratz her wish, and the points bonus provision was deemed unconstitutional.
Ms. Gratz was not satisfied, however, because on the same day, in another case, Grutter v. Bollinger, SCOTUS upheld (although admittedly damned with not-too-faint praise) diversity as a compelling state interest and upheld the University of Michigan Law School's more "holistic" approach, which took race into account as a positive factor but did not assign it a fixed value in evaluating law school applications. Thus, immediately after Grutter, Gratz reached out to the self-hating-Negro-with-daddy-issues that was the father of California's Proposition 209, Ward Connerly, for his help in fashioning and selling to Michigan's majority Proposal 2, the law which was just upheld in Schuette.
At bottom, the assertion of Michigan's Proposal 2 (and its older sibling, Proposition 209 in California) as a bulwark by the white electoral majority against efforts to increase higher educational access for people of color (and thus, ultimately, access to financial and political power, which is still distributed in this country primarily to those with elite education credentials) is "unexplainable on grounds other than race."
Proposal 2, and Proposition 209, effectively legitimize the self-serving fallacy that merit is measured most accurately by test scores and grade point averages, the indicia upon which whites depend because they (and sadly Asians, who are increasingly joining the white majority in anti-affirmative action cases because they too excel at these indicia of so-called "merit") come out on top when they are used. Yet over and over again, it has been shown that test scores are weak indicia of college success . Similarly, high school GPA, while more predictive, nonetheless still demonstrates at best only a moderate correlation with first year college grades for Black and Latino students. Nothing, as of yet, has demonstrated a correlation between either of these two measures of high school success with graduation rates from elite colleges of the type that are always at issue in SCOTUS' affirmative action cases. Perhaps this is because stereotype threat is real, and has been shown to adversely impact the performance of minority students in all--not just standardized--testing situations.
No matter: decontextualized from the history of Black oppression in the United States, within a doctrinal framework that says there is no systemic racism, only individual instances of racism, it is easy to persuade whites that since those measures of "merit" "worked fine" before when there was overt racial animus against Blacks, there is no reason to beleive they don't work equally well now that folks have learned how to fool themselves about their racism grounded in American culture itself.
With the burden on the original beneficiaries of the Fourteenth Amendment to prove differently. Which other SCOTUS decisions make clear is virtually impossible.
Schuette thus effectively guards from judicial intervention the will of the white majority against any affirmative attempt to ameliorate the still-lingering impacts of white supremacy, Jim Crow allocation of educational resources and racism—conscious or unconscious—on minorities. It is a wholesale endorsement of the conservative view of the "countermajoritian dilemma," which demands that courts defer to the will of the majority unless absolutely necessary. And it epitomizes what historian Eric Foner has repeatedly noted about the disconnect between the reasons for the Fourteenth Amendment and SCOTUS jurisprudence interpreting the amendment within the context of affirmative action and other race equality cases:
So this question of what is slavery is really at the heart of the Fourteenth Amendment. Another way of putting it is to say, "What further social changes are needed in a society that was resting on slavery to fulfill the promise of the abolition of slavery?". . .It is easy to conclude, when one reviews the entire arc of equal protection jurisprudence since the enactment of the Fourteenth Amendment, that Schuette and the plethora of race cases beginning in the 1980s with no end in sight further a unique, cherished, American value: the right to absurdly and ahistorically twist the substantive right to equality for the historically oppressed envisioned by that amendment into one the libertarian-based right in whites to avoid ceding the ongoing, collectively enjoyed, spoils of that historic oppression. What else explains the conclusion reached in a case like Schuette, effectively holding that a constitutional amendment that first and foremost was designed to ensure that the former slaves of this country were meaningfully protected against the impacts of white supremacy really was colorblind, thus leaving descendants of those slaves still suffering collectively today with no legal remedytoday if the proposed remedy might (not will, or has, but MIGHT) have an adverse impact on any individual white person as that white person defines "adverse impact?"
I may be wrong about this but I believe it's true that no Supreme Court decision has ever stated that America is a racist society. In fact, they denigrate what are called by Justice Sandra Day O'Connor arguments based on "societal racism." You can have a remedy if there's individual discrimination. In fact, in a famous Richmond affirmative action case [City of Richmond v. J.A. Croson Co.] the Supreme Court overturned a Richmond city plan to give extra benefits to black construction companies. O'Connor's opinion said you know the fact that they didn't give contracts in the past to a lot of black contractors, none of them, doesn't prove discrimination. Maybe blacks just choose different occupations than whites. Now, to say that in this country, as if the choice of occupation in American history has been totally free for everybody and equal and the distribution of people along the employment system is just a matter of individual choice, shows a shocking lack of understanding of the history of race in this country. But you find that all the time, and I can well understand why the Supreme Court doesn't want to rule "this is a racist society" because look at all the cases that would open up with people seeking remedies. . .
The Supreme Court's unwillingness to face up to the real history of racism in America skews the whole debate into this strange diversity area which to me is a minor little side note to the actual reasons for affirmative action. Still, I found it interesting because on affirmative action, for example, the court rulings are absurd to any person who knows any history. Everybody knows the reason for affirmative action is because some people have had the country standing on their neck for three hundred years, and finally they took their foot off their neck and said, well, maybe we'll give you a little help. To most people that makes sense, but that is not the legal basis for affirmative action. As you all know, the legal basis is the educational value of diversity.
(It is very similar to the currently in-vogue contention that there is no such thing as anti-black racism and American white supremacy unless it is wearing a sheet and calling black folks "niggers" every day.)
Reading holistically the recent education decisions in Schuette, Fisher and Parents Involved makes clear that Professor Derrick Bell's interest convergence principle (which argued that cases like Brown v. Board of Education were decided favorably for minorities ONLY because the interests of whites as whites perceived them, particularly as it related to US standing during the Cold War, were equally or better furthered) was not far off the mark. Alan Freeman summarized Bell's interest convergence theory thus:
[B]lacks are more likely to obtain relief for even acknowledged racial injustice when that relief also serves, directly or indirectly, to further ends which policymakers perceive are in the best interests of the country. Second, blacks as well as their white allies are likely to focus with gratitude on the relief obtained, usually after a long struggle. Little attention is paid to the self-interest factors without which no relief might have been gained. Moreover, the relief is viewed as proof that society is indeed just, and that eventually all racial injustices will be recognized and remedied. Third, the remedy for blacks appropriately viewed as a 'good deal' by policymaking whites often provides benefits for blacks that are more symbolic than substantive; but whether substantive or not, they are often perceived by working class whites as both an unearned gift to blacks and a betrayal of poor whites.History, even outside the context of Schuette, demonstrates (much to the chagrin of those who reacted to Bell's thesis as if they had been branded by a cattle prod), that Bell had the right of it as it related to the real reasons that Brown v. Board of Education and other early protection cases enforced the "right to be free from discrimination". As Richard Delgado noted in summarizing the results of a systematic investigation into whether history supported or refuted Bell's interest convergence theory:
A trained legal historian, [Mary] Dudziak set out to investigate whether Bell's hypothesis was borne out by the historical facts. After perusing hundreds of official documents in the files of the U.S. Department of State and U.S. Department of Justice, and thousands of pages of international press columns and releases, Dudziak succeeds in showing that Brown v. Board of Education and the softening of racial attitudes that it ushered in were largely prompted by Cold War considerations. Document after document and release after release inexorably converge on the same point--the United States needed to do something large scale, public and spectacular to reverse its declining fortunes on the world stage. . .In other words, this country was committed to righting the harms flowing from its anti-Black (and other) racism only when it was in its best interest to do and the costs were symbolic and inexpensive. However, as we continue to stratify economically as a nation, and the white majority currently finds itself in increasing competition for "scarce" resources (such as quality public education, including higher education), the nation's solicitude is at an ebb for remedies which meaningfully address the ongoing discriminatory results caused by hundreds of years of de jure white supremacy and even more of de facto. Thus, SCOTUS jurisprudence continues to develop in a way that makes it harder, not easier, to make any "redistribution" of resources to address the ongoing harm of racism in America.
To an idealist, one who believed that Brown reflected a change in America's collective heart and conscience, her evidence must come as a rain of hammer blows.
Professor Darren Hutchinson of University of Florida Law School summed up this current state of SCOTUS equal protection affairs in the area of race most cogently when he wrote:
A minority of commentators has criticized the suspect class doctrine by arguing that the Equal Protection Clause is framed in general terms and that a single standard of judicial review should apply to each individual claim of impermissible governmental discrimination.The trouble is, of course, that those who followed SCOTUS equal protection jurisprudence—always knew this day was coming. That we would return full circle to the narrowing to the point of uselessness the promise of equal protection for Black people and others. As Justice Thurgood Marshall wrote, in his dissent in Bakke v. Regents 35 years ago:
Despite these critiques, which contest the granting of enhanced judicial solicitude exclusively to vulnerable classes, no scholar has argued that the Court should construe the Equal Protection Clause as guaranteeing judicial solicitude exclusively or primarily for the discrimination claims brought by powerful social classes and that the discrimination claims of vulnerable groups should normally enjoy a presumption of constitutionality. In fact, most scholars and jurists would likely dismiss this argument as utterly inconsistent with the historical context surrounding the Fourteenth Amendment, the intentions of the Framers of the Fourteenth Amendment, and the judicial elaboration of the meaning of equality.
Despite the seemingly indefensible nature of this proposition, this anomalous principle accurately describes the nature of contemporary equal protection jurisprudence: by design or effect, the Court’s equality doctrine reserves judicial solicitude primarily for historically privileged classes and commands traditionally disadvantaged groups to fend for themselves in the often-hostile majoritarian branches of government. In its equal protection decisions, the Court has effectively inverted the concepts of privilege and subordination; it treats advantaged classes as if they were vulnerable and in need of heightened judicial protection, and it views socially disadvantaged classes as privileged and unworthy of judicial solicitude. This paradoxical jurisprudence reinforces and sustains social subjugation and privilege.
I agree with the judgment of the Court only insofar as it permits a university to consider the race of an applicant in making admissions decisions. I do not agree that petitioner's admissions program violates the Constitution. For it must be remembered that, during most of the past 200 years, the Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier [...]. . .Justice Marshall's dissent in Bakke carefully traces the history of SCOTUS jurisprudence involving the Fourteenth Amendment and demonstrates, like Freeman, Bell and others do in their work, that equal protection has routinely been reconstrued, when convenient, to eliminate its substantive ability to help its intended beneficiaries all while remaining cloaked in Kumbaya language. (It is therefore painfully ironic that Justice Clarence Thomas—future recipient of the uber-bolt-of-strike-down-from-hell-lightning when he has to meet his maker due to his utter hypocrisy in routinely voting to limit any semblance of affirmative action all the while sitting on the Court only because he has been one of its biggest beneficiaries—silently signed onto Scalia's full-frontal attack on the very idea that any theory of race discrimination law that wasn't grounded first and foremost in the intent of the actor was unconstitutional and that the decision in Schuette therefore didn't go far enough.)
I fear that we have come full circle. After the Civil War, our Government started several "affirmative action" programs. This Court, in the Civil Rights Cases and Plessy v. Ferguson, destroyed the movement toward complete equality. For almost a century, no action was taken, and this nonaction was with the tacit approval of the courts. Then we had Brown v. Board of Education and the Civil Rights Acts of Congress, followed by numerous affirmative action programs. Now, we have this Court again stepping in, this time to stop affirmative action programs of the type used by the University of California.
The seeds of those who put forward Clarence Thomas—who the American Bar Association deemed "unqualified" to sit on the nation's highest Court—to replace the late Thurgood Marshall continue to bear their strange fruit.
Reading Schuette in light of the education cases that have most recently come before it—Fisher, Parents Involved, Grutter and Gratz-- it is impossible to conclude any differently than what Shanta Driver, executive director of BAMN and its lead attorney in the Schuette case, Schuette-v-bamn said following the decision:
The decision of the Court today makes clear that this Court intends to do nothing to defend the right to equality in politics, opportunity, rights, hopes and aspirations of its Latina/o, black, Native American and other minority citizens.Finally, just to put the retrenchment of equal protection for Black people into perspective, as if the many stories about racist college parties with folks in blackface and "ghetto" styling didn't already make clear where we are as a country when it comes to the majority's level of respect for blacks and other people of color in higher education, we have this story: Ole Miss Frat Shuttered in Wake of Noose Incident. Because the title is misleading, it isn't clear at first what becomes crystal clear from the article: This fraternity—three of whose members tied a noose around the neck of the statue of James Meredith, the student who integrated the University of Mississippi—was NOT suspended because of their members' evocation of lynching one of the first icons of the civil rights movement. Nope. They were suspended because of rowdy parties and underage drinking.
In other words, nonverbally expressing hatred against an honored memorial to one of the most "uppity negroes" in that movement isn't punishable as long as you don't actually say you hate them. Partying too hard while you're at college is.
That type of reality about modern racism, in my opinion, tells you all you need to know about Schuette, Fisher, Gratz, Parents Involved and all the many other cases working their way through the lower courts that have systematically turned the Fourteenth Amendment into a bulwark protecting the spoils of white supremacy in America and those who continue collectively to benefit from it even though they would never admit it.
Professors Alan Freeman and Derrick Bell must be turning over in their graves, even as each also say: "I told you so." Or, as the late Audre Lorde would have put it:
For the master's tools will never dismantle the master's house. They may allow us to temporarily beat him at his own game, but they will never enable us to bring about genuine change.Truer words have rarely been spoken.
My only consolation following Schuette is that Justice Sotomayor clearly hit a nerve, and the smilin' lyin "umpire" of the Court, John Roberts, had as close to a stereotypical white whine as we're ever likely to see after she threw his disingenuous and cynical words from the majority decision in Parents Involved ("the only way to stop discriminating on the basis of race is to stop discriminating on the basis of race") right back in his face. Roberts, for all his status and power, in writing his one-page concurrence in Schuette made clear that his fee-fees had been hurt by anyone even suggesting that he and his majority might not really give a damn about minorities just because his court continues relentlessly to tighten the screws against any possible remedy for the harms that ongoing white supremacy causes in America.
Justice Sotomayor's passionate defense of the need for this country to do more than just spout kumbaya rhetoric when it comes to race and racism evoked the late Justice Marshall's equal passion in Bakke, and most importantly stripped the veneer of politeness off the conversation that is really being had in these cases. What is really needed now is to take into account Professor Freeman's prediction of this very situation in 1978 and Professor Bell's take on it in 1991, and all the cases that have systematically stripped away remedies for race discrimination all while still claiming to be against it.
Either this nation's courts and legislatures embrace a full-throated, nonapologetic defense of the ability of folks to right the wrongs, no matter what so-called-injured individual whites may think, or we as a nation should just shut up once and for all about wanting true equality. (As for what we as black people in particular should do, at least in terms of education I was pretty clear about that in the diary I wrote following Parents Involved If we don't, God help us.)
Because, as the sig line I have used ever since the Michael Dunn verdict came out says: "I can handle American racism. I can't handle American denial."