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):
I would like to make the case for affirmative action in the NBA. We all know that “white guys can’t jump” so they need an extra boost in the NBA. And there are other groups who cannot jump. There should be no more ethnic players in the NBA by percentage than there are in the population by percentage. That goes for all ethnic groups. Native Americans love their hoops, but we really don’t see them in the NBA. My new plan would get some in there. Same with Asians, Latinos, etc. We would probably have to stop buying players from Europe, but they have their own leagues over there, so they would be okay, just take a huge pay cut.
samantha,
We will never agree with each other so I will just wish you the best and stop my part of the conversation with you right now.
Paul, yep we crossed signals there. Alcoholics Anonymous didn’t make sense, but I’d like to hear your argument for AA in Hollywood.
I really do not want to make an argument for AA in Hollywood, but the one area of the entertainment industry where minorities are under represented (except for Disney) is Hollywood. Hollywood is a bastion of liberalism, but has the least color. There are even parodies where the single black actor in the film is named ‘token black guy” and is killed by the second reel.
Jill, there is an ash heap of junk art, which grew when public funds were thrown at the arts. Society has become an ash heap for the same reason. If you are looking for the sort of justice and equality that you want, you are going to have to reset back to a time when people, corporations too, were not hand fed. I’m fully capable of earning more money so that I could live in a bigger house, but I don’t want to. I’m completely content with where I am. But it doesn’t mean that I should get a subsidy so that I can live in a bigger house, like my neighbor next door, who works his ass off for it. A lot of us just make our own beds, and we don’t want you making another one for us, especially if it puts us at odds with our neighbor, because you raised his taxes to get your way. Just saying out loud.
And your point is Paul?
Keebler/Dredd – according to the APA President Obama no longer has that particular mental illness.
samantha – by AA I meant affirmative action not alcoholic anonymous. I think we crossed signals here. 🙂
Paul,
Are you saying you no longer have a vald classification?
Paul, you are right about AA. But it least an actor doesn’t get to keep his job, unlike too many in mainstream society, when he no longer can perform. He has to recover first and then start all over again.
Me said: “regarding schools accepting students via lotto……………. That is what grade school and high school is for. They take everyone and teach them and it depends on the child and how hard he works as to what he chooses to do with that privilege” (and Nick wrote about the kids in Appalachia as another segment that does not get the same education as those in the suburbs (re my comment earlier)
It reminds me of when I tutored a kid at the local elementary school when I was in college. This was in a suburb, not poor but not wealthy either. My kid, Joe, had been held back for 2 years and still had trouble reading. I was told it did not matter if I could not help him increase his reading skills, the school could not afford to hold him back for a third year so he would be promoted no matter what.
Taxpayers often balk at increasing the school taxes and this results in schools not being able to do all they need to be doing, esp for the kids who are not progressing.
me–our grade schools and high schools suffer from vicious inequality. The whole society needs to own up to that and make it right, top to bottom. At this point, universities need to take in everyone. If they are supposed to be so great, there is no reason they cannot turn to their own resources for the benefit of their students.
Imagine what social workers, tutors, physical education instructors, neurobiologists, psychologist, psychiatrist, and trained educators could do if they wanted to help each and every student. You assume that people who can’t do something yet aren’t hard workers. That assumption is incorrect. It is the lazy educational institutions who have no interest in applying their considerable skills and resources for the benefit of this society’s students. If they would apply themselves they could get in there and teach so many people in our nation.
We can most certainly take people as they come and help them. We just have to want to do this. Where is the money coming from? We just sent fighter planes to “help” NATO. If there’s a war, we have the money for it! I suggest this entire society does need to change. It needs to offer housing, medical care, education and work to all. What a worthy use of money instead of droning, cluster bombing and invading everyone in sight. We could do this.
rafflaw – college athletes have to meet minimum standards of academics. It is not like the olden days where they just had to breath but they actually have to have a minimum score on either the SAT or the ACT and they have to complete 24 semester hours each year with a C average, or they are on probation..
Annie,
The other preference granted by admissions is to athletes who, in some cases, do not match the academic criteria, but yet still gain admission due to their athletic abilities.
samantha, well stated indeed.
The social dynamism ongoing in this situation is victim bashing, a cultural phenomenon that can thrive in any culture that promotes or enables it.
That kind of narcissism knows no national, heart, soul, or brain boundaries:
(Is It Wrong To Be A Victim?). The narcissistic portion of personality that this cases exposes is the same narcissistic portion down deep in symbolic racism.
A subculture (several families) are suffering the death by negligence of one of their own by someone in another subculture (the supreme LEO caravan).
“Your culture is a victim of our culture,” thus “our culture now disparages, blames, isolates, and condemns [your culture] for being a victim”.
You don’t know how to ________ correctly, therefore you are getting what you deserve.
Sicko but spot on.
Dredd or Keebler – thought you should know that the APA dropped narcissism as a mental illness in the latest DSM.
Nope Rafflaw, I know a young man who had mediocre grades and ACT scores get admitted to an elite university in California because his girlfriend’s daddy was an alumni and donor.
Annie – state school or private school? Private schools often have ‘legacy’ positions for sons, daughters, etc. of alums. State schools are not supposed to operate that way.
Jill:…regarding schools accepting students via lotto……………. That is what grade school and high school is for. They take everyone and teach them and it depends on the child and how hard he works as to what he chooses to do with that privilege. College is for those who apply themselves and want more out of life than to slide by. Those who excel should be chosen first, no matter race, country of origin, however the applicants should be of a majority percentage from the country that supports the school………. my opinion only.
Regarding prisons………………… when I was young, and no I am not as old as dirt as my 15 year old grandchild tells me. In many prisons the Inmates earned their keep and the Govt. did not have to pay all of it. They grew their food, cleaned their own clothes and the cost to keep them was much much less than it is today. The excess crops were sold and the monies were used to keep up the prison structures. Of course that was on a Prison farm where there were no walls. Yes they existed and believe it or not, it worked. As a child, I used to live on a prison farm in the south every summer and of course they did not have televisions or cell phones, but they did have a state of the art hospital that treated the prisoners as well as the guards and their families and many who worked in the hospital were prisoners. Only the hospital was surrounded by a fence. Oh yes, as kids we had no fear of those who kept us all day.
If a prisoner could cook he had a choice, be a cook or work the fields, So our cook was a prisoner and so was our housekeeper. I must admit that we were told to stay away from the cook, he killed his wife. We stayed our distance and all went well. H, we didn’t have televisions, one telephone per house where guards lived, but everyone worked for their keep. Today that is against the law. We give them a small cell, all the perks they want and the taxpayer pays for all their keep, education and health care. I would be mad as H if I had to be kept in a cell like a dog or cat. What is wrong with having small groups of men and women clean up the highways like they use to. No we have to have paid employees to do that with unions representing them. and instead we pay for the prisoners to have sex changes, etc. etc. Progress has only succeeded in making the hard working man who has done nothing wrong and who has tried to feed and educate his family to be overly taxed to death to keep those who would rather take from others than earn their own way with all the healthcare, and other perks we ourselves cannot afford.
Yes we need to reevaluate our system but it is not the society we should change but the prison systems. They should have access to health care and learning but they should also be made to work to help support themselves and there are ways that can be done. Better use made of the people who inhabit the prisons but that is a completely different subject…….. They are not animals and when they are released to society, then they may feel better about themselves and be less apt to be a repeater if they are allowed to grow while in prison and not be kept like caged animals.
Raff,
That’s known as the college hedge fund….. Bush couldn’t have got along without it….
Annie,
as mentioned by someone earlier, are the admissions decision blind to wealthy donor’s relatives?
Rafflaw, you hit on the truth, IMO. This decision opens the door to a yet more sophisticated and underhanded form of Jim Crow. I don’t think the Justices or Professor Turley’s students are racist, I do however think they are counting on the fairness of college admissions people to be colorblind. I don’t think our society has advanced that far in race relations yet.