We have been discussing the Court’s ruling in the Michigan affirmative action case, Schuette v. BAMN. This included a recent column in CNN with two of my George Washington law students. This Sunday, civil rights attorney Shanta Driver went on Fox News Sunday to denounce the decision as “racist” and presumably anyone supporting the result. The comments caused quite a stir and highlights the continuing difficulty in discussing such issues — and the fear of some that they will be labeled racists if they support a color-blind admissions process.
Driver pulled no punches in her interview and denounced the Court for “a racist decision that takes us back to an era of state’s rights.” She added, “This decision cannot stand.”
First, I think that it is reasonable to point out that a debate over a color-blind admissions process is not quite the same as the laws that existed at the height of the civil rights movement. Those laws actually barred people of color from going to many schools. At the time, civil rights advocates were fighting for color-blind admissions. This is not to say that there are not valid and compelling concerns over the barriers to higher education that still exist for minorities. However, this is a worthy dialogue that is not advanced by such loose comparison in my view. Driver raises some good points about how minority students often come from schools that are often struggling and less competitive for college examinations. That is the most compelling issue for those opposing this decision. Driver stated that “The old Jim Crow [law] is now the new Jim Crow.” Those Jim Crow laws that distinguished between people on race and prevented African Americans from eating at restaurants, drinking at fountains, and going to schools.
Second, I do not believe that this decision is racist or that those voting for the result are racist. As I mentioned in the earlier post, only Justice Sotomayor and Ginsberg voted to upheld the Sixth Circuit. Liberal or moderate justices like Breyer and Kennedy voted for the outcome in the case to allow citizens to adopt a color-blind system. This reflected the vote in my Supreme Court class which was overwhelmingly in favor of the such result by a vote of 11-4. I do not consider my students or six out of eight voting justices to be racist. There are good faith reasons for ruling that citizens retain the right to bar the consideration of race and other criteria. The merits of such a decision can continue to be debated. However, the Court ruled that this remained within the power of citizens to mandate that immutable characteristics like race should not be considered as a criteria for admission.
The labeling of the decision as “racist” tends to chill the debate over the efficacy and constitutionality of systems that consider a person’s race or gender in selections. There are legitimate issues on both sides of this issue. The labeling of critics of these systems prevents a serious debate and is a gross unfairness to many. It is obviously possible to hate racism and to view such race-conscious systems as perpetuating rather than solving the problem. What is particularly odd about Driver’s comments is that even Sandra Day O’Connor in her decision in Grutter v. Bollinger stressed that the court “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” That was 11 years ago. It is also worth noting that this decision, like so many, was a 5-4 vote. Various justices have long viewed the use of race in admissions to be itself a form of discrimination. Driver insisted on the program that “I think it is unbelievable that someone would sit her and say prohibiting racial discrimination is a racist decision. I think that tells us where the level of discourse is today.” However, I would think calling this decision “racist” shows that very same inclination to end debate. Some justices and certainly many people view the consideration of race in selection to be by definition racial discrimination. We have had a debate of that question in my classes and it was civil and respectful despite being passionate. No student accused another student of being racist. Those classes have been some of the most interesting of my career as an academic.
Driver is the National Chair of the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN). She has led campaigns to keep anti-affirmative action referendums off the ballots of Oklahoma, Missouri and Arizona. She is a graduate of Harvard University and Wayne State University Law School. She is a partner at Scheff, Washington & Driver.
Driver’s statements on the program were not made in haste. To the contrary, there came virtually verbatim from the official statement that she released on the BAMN website and to the media:
“Today’s Supreme Court decision upholding the ban on affirmative action in Michigan is a racist decision. It is this Court’s Plessy v Ferguson. 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. At the very moment that America is becoming a majority minority nation this Court is declaring its intention to uphold white privilege and to create a new Jim Crow legal system.
Indeed, before the Supreme Court on the day of the argument, Driver led a chant denouncing the argument in favor of color-blind admissions as a “Jim Crow” position:
Many jurists would find that type of argument to be over-the-top and insulting. However, such protests (while often portrayed as directed at the justices) are really directed outside of the Court to supporters. Indeed, any justices hearing such protests is more likely to be insulted than impressed but rhetoric. Indeed, I found my student Yvette Butler far more persuasive in her opposition in the recent column than those using such over-heated and accusatory arguments. This is yet another cases where I felt my students (not just Butler and Cirrili but all of my students) showed far more measured and meaningful analysis of the case than what we have seen on television.
Here is the exchange on Fox with Jennifer Gratz (who filed the claim that resulted in the 6-3 in Gratz v. Bollinger, where the Court ruled that the University of Texas violated equal protection in the selection of students based on race and other criteria):
Whenever I get into a bar room discussion about affirmative action, I always ask the person to look through the lens of celebrity, to imagine what popular culture would be like if there was affirmative action in the recording industry, in movies, in publication, and in spectator sports, especially. The Clippers basketball team is 80 percent black not because of any affirmative action but because the consuming public demands only talent. Black musicians didn’t need affirmative action, before or after the civil rights movement, to make it to the charts, because the buying public liked their product and bought it. There was no affirmative action for Sidney Poitier yet the consuming public made him a star because they liked his talent.
Unhappily, talent is not the basis of our economy; performance and excellence are displaced by nepotism and cronyism that all too often cause scum to rise to the top. It’s how you end up with whores in Congress, Wall Street fraud, 400 kids dead in a ferry boat sinking, school massacres, poverty and social injustice. A million laws cannot fix a million injustices. But a single law that would exterminate corruption and incompetence for talent and excellence, instead, could.
Samantha – although I agree with almost all of your statement about the arts, Hollywood is the one place where AA is needed.
Paul,
As one of those Irish Catholics, the idea that the discrimination they/we suffered in the past is similar to what African Americans have endured and in some respects are still enduring, is faulty at best, IMO.
rafflaw – since the Irish Catholic have been kicked around since the British invaded somewhere around the end of the 11th century and prior to that were subject to regular attacks by Norsemen and that abuse on both continents continued well into the election of JFK, and they are still getting kick around in Northern Ireland, not sure you are correct. Sorry for the run-on sentence 🙂
The use of MLK’s dream speech language to claim that he would have been for this decision is not correct. In my opinion, he was hoping that there would be a time when his kids could be judged by their content of their character, but he wasn’t saying that they could be judged that way yet. The whole idea of affirmative action is an attempt to level the playing field to remove the vestiges of racism that deter or impair minority access to higher education. I fear the decision opens the door for states to reinvent Jim Crow laws by going through the state vote process.
Racism still exists and still impairs minorities in their attempts to be on an equal footing in many areas. This same Court has allowed the states to impair minorities ability to vote. What would you call that? Just politics?
It’s a simple truth that this country will never be able to pay the unfathomable debt owed to the multiple generations of uncompensated, hellishly mistreated minority labor that built her.
They’re no longer with us, but thankfully their children are.
In fairness, we have no right to begrudge them any chance to prosper, and providing every opportunity for a substantial education is the very least we should humbly do.
halvie54 – the Irish Catholics got treated like crap, so they should have educational set asides?
leej, The white kids in Appalachia and many rural areas do not get the same K-12 education as kids in toney suburbs. They don’t get an AA preference.
Me, we don’t all attend the same schools. The children in areas like the south Bronx, watts, inner cities do not get the same advantages that many in suburban schools do. The problem, in my view, is that is when we need to get to equal opportunity for all. By the time these kids who did not get equal education have the chance to apply for college they are often already at a disadvantage, educationally.
Paul Schulte
Dredd – … As a former communications instruction, I am aware of emotional arguments, that is what the woman was making …
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Michael “she is too emotional to know her expertise” Hayden would be proud that you are not a gender challenged fellow like him, because you used to teach communication stuff.
me
… What is wrong with people being admitted on their intelligence rather than color of their skin …
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In a society that has zero racism in their history, and has no racist subconscious peculating underneath the surface, nothing.
Ignoring reality and shriveling into a vacuum bereft of today’s symbolic racism is like making caselaw decisions based on the the laws and history of a nation somewhere else.
In heaven, for instance, not in the current U.S.eh?
Paul Schulte
… That is not to say that there are not predominantly race centered schools based on demographics …
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It is good that you acknowledge racism in others, but the better exercise is to recognize within because only you can change that.
And what about the gender bias you grew up in (… her opinion, … is based on emotion …) ??
Biasism comes from the same place (Exceptionalism In A Nutshell) that bad religion comes from (Who Knows What About Religion).
Martian Luther King said it all when he said it was “his hope that his children would be judged by the content of their character rather than the color of their skin.” What is wrong with people being admitted on their intelligence rather than color of their skin. For an A student to be overlooked so that a person of color can be admitted no matter his/her intellectual abilities, that is being racist against the student who happens not to be of an ethnic race. Persons going on to higher education should be admitted by their abilities not by the color of their skin or their country of origin. Who in H ever said life is fair? Life is what you make of it. You fall as a kid, you get up and try again.
We all attend the same schools and have the same chance to grow intellectually in school, it all depends on the effort we put into it. Why should anyone who has given his/her best and excelled be pushed aside for someone who is of different race who may not have achieved the same intellectual maturity. Race should have nothing to do with people getting ahead in life especially in our institutions of higher learning or anywhere else for that matter. Those who excel in their studies should be given the chance to go further on their abilities alone. Color or country of origin should have nothing to do with it. HOW HARD YOU WORK, HOW HARD YOU APPLY YOURSELF, AND YOUR ABILITY TO GET ALONG WITH PEOPLE WILL GET YOU AHEAD WITHOUT SCREAMING RACE.
For the last 100 years we have been fighting this race war and it is time we come to our senses and realize that those who work the hardest to excel and achieve the grades by effort and ability alone should be accepted first to our institutions of higher learning. I am tired of hearing the race card pulled by racist whenever they can’t succeed on their own merits. This country has been split by the cries of race from our president, Mr. Holder, Harry Reid and every other racist liberal in Washington.
In response to Veronica, Human nature has been just that since the beginning of time. I would much prefer to have the most intelligent in charge than one who is always making excuses for their bad decisions. Race baiting and screaming racism is nothing but a cop out for not applying one’s best. Those who apply themselves instead of those who yell they are victims, are the ones I want to run my country. I am one of 12 kids and believe me it is the one who works the hardest that gets ahead. My grandmother born with only one arm, was a school teacher at a time in life when she had to truly apply herself to get ahead plus that she raised 7 kids. Racism is a cop out. Look at our veterans who are coping with all their disabilities, did you not know that the human brain is capable of a lot more than we require of it. The key word there is require. It is the one who applies his abilities that will always get ahead. THAT IS HUMAN NATURE!
Hoping this will post this time:
People who call others racist can be sincere or cynical. If she believes this is a racist opinion then she must be free to say so and explain why she believes this to be the case. Others, like JT should then speak as to why they do not think it is racist opinion.
The cynical use of calling people “racist” is designed to shut down debate. For example, any criticism concerning Obama was/is cynically called racist as a way to protect him from accountability for his actions. It was/is wielded like a club against perfectly honest statements and many good people were/are vilified simply for being truthful. This is a disaster for our nation and people should be aware of it when it occurs or when they engage in it themselves.
We must think out what people are actually saying and doing. I agree with Dredd that this is a racist society. We must confront this fact and work to change it. This raises the issue as to whether affirmative action is the best way to deal with the racism of our society.
I had a chance to go to a conference on prisons. The presenter pointed out how angry people were that inmates had access to medical care, food, GED preparation, etc. People were angry about this because in truth, they did not have access to any of these things even though they had committed no crime except being poor.
His point was that if people are angry that inmates are getting medical care, etc. while they are not, perhaps it is time to take a good look at what kind of society we have and change that society. Instead of taking away these goods from inmates, we need to extend these as rights to all people.
Personally, I feel free education is a right that should be extended to all people. I always thought colleges should have at least 70% admissions by lotto. Then it is their job to help every student succeed, taking them wherever they are at academically and apply every possible resource to allow them to learn.
Dredd – I know that some people are racist. There is no question about it. Al Sharpton is my favorite racist. As a former communications instruction, I am aware of emotional arguments, that is what the woman was making, that was not a gender bias. She had no facts or law behind her, only emotion. She and Sotomayor were a pair. All hat, no cattle.
So it’s “racism” to not use race as a factor in determining college admissions.
George Orwell, your service is calling.
I think Texas admission policy in the undergrad is good. Now the law school has a different approach. But who is to say its wrong.
Paul Schulte
… her opinion, … is based on emotion …
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Where have I heard that before?
The majority of social scientists (anthropology, economics, political science, psychology … sociology … archeology, history, law, and linguistics – Wikipedia “Social Science”) are pessimistic that the United States will overcome symbolic racism (Symbolic Racism: A Look At The Science).
One cannot overcome what one is blind to and therefore cannot see.
It takes transparency at the onset to begin to see what is culturally subconscious.
The society has been racist from the onset, and still is.
The debate should be about how much racism, not if there is racism.
Kerry used the word to describe Israeli politics what Carter has been calling it for years: Apartheid.
They don’t see it of course, because they are not looking within, they are looking without.
Dredd – we continue to have this discussion, but social science is not a science and symbolic racism is an artificial construct designed to make liberals feel good about themselves.
Dredd – when was the last time you were in a classroom? Do you realize how color-blind most schools are these days? That is not to say that there are not predominantly race centered schools based on demographics, but rarely do you see the students concerned over the color of their skin.
The SC has spoken, get past it.
Making it slightly easier for minorities to enter school is in everyone’s best interests. PERIOD. That voters do not understand this is regrettable. Giving voters a voice in this may be unfortunate. So perhaps private institutions can and will take up the cause.
Trouble is human nature is what it is – that is why Ms. Driver’s argument is so strong. We can be as idealistic as we want, but underneath in the deep recesses of our souls is the “me-not-him” personal choice level which dictates what people do almost without their own understanding of why they do it.
That is what society has to fight with in attempting to be fair. We are too primitive. We do have to fight for what we get in life and anyone that looks like NOT our group gets discriminated against in that fight. Will you give up the ability to have an education yourself and let someone from another group have your slot – can’t be expected ! We have to make sure there are educational slots for all applicants who want them in order to change the situation. I hate that this is true, but since I do not have a lot of love of the human animal myself I do not really expect much else. “when I am in charge” things may be different, – until that happy day, we need some laws that stop those gut-level judgments from preventing a fair percentage of ‘others’ from getting opportunities to raise themselves up.
Veronica – from your post I cannot tell whether you are for or against AA.
First, she is waving the ‘bloody flag of racism’ in the hopes of shutting down debate and getting her way. Second, in her list of minorities, she misses Asians, who are often discriminated against in affirmative action admission policies. She has a right to her opinion, but it is based on emotion, not on logic. Sotomayor had to twist the Constitution and throw in the kitchen sink to get the decision she did.
The funny thing is that Martin Luther King had the same position as the SCOTUS and for Driver to take this decision as racist is absurd. Since I personally heard King’s I have a Dream speech, I recall the line about his hope that his children would be judged by the content of their character rather than the color of their skin. There are legitimate questions as to whether or not we still need such preferences and we have to look at social science to make those judgments.
The other problem is that it is in the interest of society and the school to have racial and GEOGRAPHIC diversity. I recall that when I was applying to colleges, it was pointed out schools like to have this diversity and it should be left up to the school to decide what kind of mix they wish if they do not get Federal funds, and if they do, perhaps they could establish a panel to decide the limits of the social, racial, and geographic composition of its student body. I find that laws banning such quotas are bad policy. This takes reasoned debate and NUANCED selection which is best left outside the political process as Driver has shown.
As long as people like Shanta Driver are employed to shout racism, people will should racism.