By BRIAN CRAWFORD
The Supreme Court of the United States, with Chief Justice John Roberts writing the majority opinion, has eviscerated affirmative action as a method of addressing the historic exclusion of racial minorities from institutions of higher learning. The trajectory of the court is predictable given its conservative character. The highest court in the land proves once again that it is not an institution dedicated to the protection of the oppressed, even with legal precedence set by previous rulings.
Harvard and the University of North Carolina were challenged in separate cases in concerning admissions policies that the plaintiffs, Students for Fair Admissions, perceived to be biased against Asian American applicants. SFFA challenged the universities under Title VI of the Civil Rights Act, but lower courts upheld the admissions criteria, paving the way for the cases to appear before the Supreme Court.
Ultimately, on June 22, the conservative majority ruled in favor of the plaintiffs. Chief Justice John Roberts wrote on behalf of the majority: “Respondents’ [the universities’] assertion that race is never a negative factor in their admissions programs cannot withstand scrutiny. … College admission is a zero sum game and a benefit provided to some applicants but not to others, necessarily advantages the former at the expense of the latter.”
Justice Sonya Sotomayer, writing for the minority opinion, countered: “The court subverts the constitutional guarantees of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and our pluralistic society.” The outcomes will likely guarantee a whiter campus for many of these colleges and universities.
Right wingers laud “the model minority”
Affirmative action based on the practice of considering race as a factor among others to admit college applicants has been opposed by the right wing since its inception. Typical of constitutional challenges, a test case is significant because of its potential for setting new legal precedence.
Henry Blum, a conservative responsible for Shelby County v. Holder, which ultimately resulted in the Supreme Court eliminating enforcement of the Voting Rights Act, is also the founder of Students For Fair Admissions. Blum initially supported two white female applicants from Texas in a lawsuit against the University of Texas at Austin alleging “reverse discrimination.” This case was unsuccessful, and Blum turned to Asian Americans as more compelling plaintiffs. This strategy of using one minority to slay others proved effective.
Rather than argue Affirmative Action discriminates against white applicants, Blum used “Asians … as proxies for white students,” says writer and activist Jeff Chang. A broader divide and rule strategy produces animosity between Asians, Blacks, and Latinos. Chang, who fought for affirmative action in the decade after the Supreme Court eliminated the quota system that made spots for Asian students, says Blum has co-opted the movement. While Chang’s organization consisted of Asian students, Blum’s Students For Fair Admission did not produce any Asian students to testify in court that they were being discriminated against.
Even so, the myth of Asian Americans as “the model minority” was used to great effect. Tayo Bero writes in The Guardian, “The racist discourse around affirmative action teaches Asian students that they’re being disadvantaged in favor of Black students.” Blum and others of his ilk are using Asians in their “white supremacist … anti-Blackness masked as fairness.”
Mythology serves opponents of these programs. While Asians are portrayed as self-reliant and academically qualified, invariably questions are raised as to whether Black or Latino students are worthy of prestigious institutions such as Harvard. A mythology cultivated over the decades assumes minority groups are admitted based on race alone, and not academics. However, Black students admitted to Harvard University graduated at a rate of 96% in 2021, while Hispanic and white students’ graduation rates were 97%. Blacks at the University of North Carolina graduate at a rate of 85%. The graduation rates of Blacks at the two universities named in the lawsuit would indicate that these students are no less qualified than their white peers. Meanwhile, over 40% of white students admitted to Harvard were as a result of legacies; i.e., their parents had attended the university or donated money to it.
Effects of abolishing affirmative action
Sociologist Ted Thornhill writes about a survey in which 500 admissions counselors, 75% of whom were white, were not attracted to “applicants who discuss Black resistance to white racial domination, for instance; [they] were penalized in scores.” Substituting for affirmative action, essays will stand in their place. Black applicants will in effect be mandated to demonstrate their mastery of the art of bootstrapping. Black students will increasingly try to set themselves apart by telling triumphant stories of individualism and resilience in the face of racial hardships.
In 1996 a ballot initiative abolished “race” as a factor in admissions for the University of California and the California state university systems. Proposition 209, the deceptively titled California Civil Rights Initiative, passed and subsequent enrollment of underrepresented minorities fell dramatically. In 1998, the year of the first incoming class that was affected, a 40% decline of Black and Latino enrollees was documented. Both groups experienced lower wages, up to 5% between the ages of 24 to 34.
The Center for Studies in Higher Education found that the implementation of the new policy “deterred thousands of qualified (underrepresented minority) students from applying to any UC campus.” An attempt by the California legislature to reverse Proposition 209 passed both chambers and was supported by the University of California Students Association, but was vetoed by Governor Jerry Brown in 2011. Other attempts, both legislative and through ballot initiatives, have failed.
Beyond the campus
The ruling on affirmative action could impact programs that address a relative absence of minority hiring at individual firms and industries. Diversity, Equity, and Inclusion programs are being confronted with the prospect of legislative bans by states such as Florida. The right has determined that diversity is anathema to their ideal America. Adam Liptak writes in The New York Times that the court’s ruling is “expected to set off a scramble as schools revisit their admissions practices, and it could complicate diversity efforts elsewhere, narrowing the pipeline of highly credentialed minority candidates and making it harder for employers to consider race in hiring.”
Alvin Tillery, professor of political science and irector of the Center for the Study of Diversity and Democracy at Northwestern University, says the main target of right-wing organizations funding campaigns and legal actions are the workplace: “This is what the right wingers will attack next, and the economics and societal ramifications of that will be much larger.”
The racial wealth gap is already significant between Black and white households and workers. Blacks continue to be underrepresented in high-paying fields, particular professions such as legal, science and technology. An AP analysis “found that a white worker had a far better chance than a Black one of holding a job in the 11 categories with highest median annual salaries, listed by the Bureau of Labor Statistics.”
Barriers did not fall with the Civil Rights Act; subtle and not so subtle racism continues and it is structural in all institutions. Blacks living in poor neighborhoods attend schools that lack resources. Corporations discourage minority applicants or claim they can’t find qualified candidates to fill positions. Blacks also find little support when starting business, such as in technology, where whites are more likely to find capital coming their way than Blacks in the sector. The AP study found “racial disparity in employment is indifferent to geography or politics” [i.e., Democratic or Republican-dominated regions]. Whether it’s Silicon Valley or Seattle, “whites outnumber Blacks nearly 28-1 in computer and math related fields.”
Blacks are also underrepresented on Wall Street. While some corporations have instituted programs to increase minority hires, any attempt to legally prohibit programs through legislation or litigation will further hamper the prospect of diversity in these sectors. But, that is the point.
Systems of social control
Race is a determinant in whether or not an individual is stopped and arrested by law enforcement. Northwestern University examined over 13,000 agencies nationally; their finding concluded that arrests of Black people increased from nearly six for every one white arrested in 1995 to over nine compared to white arrestees in 2015.
“In each generation, new tactics have been used for achieving the same goals” writes Michelle Alexander in “The New Jim Crow,” goals that were shared by the so-called Founding Fathers. “Denying African Americans’ citizenship was deemed essential to the formation of the union.” Methods to perpetuate this state of exclusion have persisted while evolving over the centuries.
Invariably, the courts have been central in frustrating Black liberation. The exception carved into the 13th Amendment allowing for forced servitude led to statutes designed to entrap the Black population in a way that conformed to the new post-slavery reality. Race as a factor in policing is evident in percentages of stops, arrests, prosecutions, and the over-representation of Blacks and Latinos in the prison population.
The disproportionate representation of Blacks and other minorities caught in the web of the “criminal justice system” is not arbitrary, nor is it based on one’s inherent criminality. The New York City police department for years practiced racial profiling under “stop and frisk,” in which young Black and Latino men, usually under 30 years of age, were stopped multiple times. Challenges were made to this form of policing, and ultimately, in 2013, Judge Shira Scheindlin ruled that it was a violation of 4th Amendment rights to be free from unreasonable searches and seizures. Thus, an officer must have a “reasonable suspicion” that a person is a threat, either to the officer or to the public. Of course, this is left to the discretion of the officer, who has the authority of the state. The judge also found that the practice was racially discriminatory and in violation of the equal protection clause of the 14th Amendment.
However, whether or not the official policy of the police department is “stop and frisk,” Blacks are still disproportionately subjected to stops and arrests. Legal remedies are limited and legal precedents are subject to interpretation or reversals.
Court as political barometer
Justice swings in different directions in different periods. That direction is dictated by the class struggle. At times, progress grinds to a halt; at others, it moves at breakneck speeds. “There are decades where nothing happens,” wrote Lenin, “and there are weeks where decades happen.”
Periods of mass mobilization and resistance are frequently met by repression from the state. On occasions in which a battle is won, too often the movement de-mobilizes and goes home. Subsequently, all that is won begins to melt away under the heat of organized reaction. The right wing is seizing the political advantage in order to try to complete the decades-long task of erasing any progress achieved during the last 70 years.
Abolition was not granted out of benevolence but entailed a courageous and quite dangerous struggle by those who risked life and limb. The possibility of lynching was real. The courts were against emancipation of the slaves, as demonstrated by the Roger Taney Supreme Court in the Dred Scott v. Sandford ruling of 1857, which ruled that Scott was not a citizen and the property of a slaveholder, even though he had lived for years in a free state.
Even the 14th Amendment was not enough. Congress passed the Civil Rights Act of 1875, which states: “Be it enacted … That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of accommodations, advantages and facilities and privileges of inns, public conveyances on land or water … applicable alike to citizens of every race color regardless of previous conditions of servitude.” In 1883, the Supreme Court ruled the act unconstitutional and hollowed out both the 13th and 14th Amendments.
Then a little over a dozen years later, in 1896, came the Plessy v. Ferguson Supreme Court ruling, which established “separate but equal” as the law of the land. These court cases were strong reversals in the post-Reconstruction period.
After Word War II, Blacks began to resist the social order in a more organized manner. The Supreme Court ended legal segregation in 1954 with its ruling in Brown v. the Board of Education of Topeka, Kansas. But it was not the court case that started the movement; resistance to racial segregation had already commenced. The case itself is evidence of this fact.
A decade later, the Civil Rights Act of 1964 restated and expanded the 1875 Act. It was followed by the Voting Rights Act of 1965. More militant struggles would follow and the Northern cities continued to experience struggles against poverty, police brutality, and unemployment. Both the courts and state legislatures responded to the period of mass struggle through concessions that were made during this period.
In recent years, however, the lack of sustained organized struggle has led and will continue to lead to the revocation of our rights. A void has been left, and the right has filled it and is on the offensive.
The current Court is akin to the one that struck down the Civil Rights Act of 1875. It did not go so far as to say the Civil Rights Act of 1964 was unconstitutional but essentially neutralized it. The ruling on affirmative action and another case that limits the rights of same-sex couples calls into question Title VI and its viability. On the one hand, the Court limits the ability to address historic and ongoing discrimination and disparities, and on the other, it opens the door to potential legalized discrimination, with this ruling as legal precedent.
The current Supreme Court reflects the reactionary politics that have seized the moment. Oppositional forces must amass and assert political independence. The necessity of putting forth demands backed by a sustained movement is evident. There must be funding for public education particularly in under-resourced communities. We need increased admissions to colleges and universities that are not limited to the elite campuses. There should be an elimination of legacy admissions. Colleges and universities should not drive students into a lifetime of debt. The massive disparities between Blacks and whites in wages, particularly in higher-paying sectors, must be challenged.
This Supreme Court will continue to try to turn the clock back until it arrives at the 19th century. There should not be any illusions; more setbacks are virtually certain to come. But let us remember that the Supreme Court does not have the last word. It did not in 1896, and it will not this time.
Photo: J. Scott Applewhite / AP