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):
Bettykath, too emotional? Hmmm that sounds very familiar.
Nick,
The operative word is assume.
Paul,
Yes, athletes do take seats and scholarship money from more qualified non-athletes.
Paul, There are far fewer African Americans entering college in CA and MN since the voters said that affirmative action was no longer to be considered.
rafflaw – those are “athletic scholarships” and the seats include the athletes
Paul, I have learned a few things on this blog. One is when you see “White privilege” then just move on. Their mind is encased and nothing will penetrate it. Bettykath is a good person, but race is VERY emotional. But, knock yourself out if you wish.
So sorry for my ignorance. I thought it was still white men in nearly all positions of power. Now I find that white privilege no longer exists and that everyone has full access to everything they need to be successful. My bad. /sarcasm.
bettykath – you are talking apples and oranges. If we are talking schools, there are more women and the valedictorian is more likely to be a woman. More women in law school then men. More women graduate high school then men.
To get in a position of power takes time. So it is likely that more men are still in positions of power than women.
The decision is unfortunate and an act of white privilege, i.e. racist. It will allow schools to accept only those students the admissions folks deem “acceptable”. There are many ways of eliminating Blacks. They don’t have to wear a star on their clothing to be identified. It has already been shown in CA and MN where the state laws have eliminated the need for affirmative action that acceptance of minority students has dropped dramatically.
White men, in particular, are running the war on women and have been running a war on Native Americans and African Americans for as long as they have been in this country, They are fighting the possibility of losing their power.
When I worked in a large corporation I got to see first hand that white men were perceived as having lots of potential while women and all minorities didn’t. Those making the hiring and promotion decisions were white men. They saw those who looked like themselves as being more acceptable, and most likely an extension of their own power base. White women and minorities were seen as less capable and a threat to their power base.
bettykath, that’s a broad brush that you stroke with. You must not be aware of the discrimination against males in government, where women have overtaken bureaucracies. Napolitano’s office was targeted with lawsuits just last year. Did it have anything to do with her hightailing it to California? Who knows? In the same way that people yell racism to end the conversation, they yell white privilege also in hopes of ending the conversation. The larger picture is that power corrupts. It does not matter that the person in power is white or black, or male or female, the end result is that you always get corruption, nepotism and discrimination. Each of us has the power to see the larger picture, but it doesn’t mean we should abuse our power to distort our own view. Change the system so people can be held accountable, and you will have fairness no matter white or black or male or female. We’ve already seen that having a black president hasn’t worked. Nor will having a female president work. But the presidency would work if the president is accountable not to the one percenters but to the people instead.
bettykath – you do realize that there are more women in college than men. That the biggest war on women was when Hillary Clinton was protecting Bill from the so-called ‘bimbo eruption.’
Raff, You do watch college basketball and football don’t you. I base my assumption that the vast majority of athletes that get scholarships are black on my ability to see. I base my assumption of the myriad of recruiting scandals involving academics are almost always black athletes who had no business going to college. I have also said this is not only on greedy schools, it is on the NFL and NBA who have no minor league system like MLB. If a kid is a great baseball player in HS he has a choice. If he’s a good student, he can go to college and play in a good program, and get an education. Hell, Stanford is a great school w/ a great baseball program. If he is not academically oriented, he signs a minor league contract. That is why there are NO academic recruiting scandals in NCAA baseball. They have a choice. A football or b-ball player does not. “There is no freedom w/o choice.”
rafflaw – athletes are not taking spaces from non-athletes.
Dredd – symbolic racism is a figment of your imagination. It is a piece of cheese you ate last night. (To paraphrase Charles Dickens)
Leejcarrol:
“We don’t all attend the same schools. The children in areas like the south Bronx, 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.”
How well I agree with you, I am a product of just such schools, plus the fact that I left the Appalachian school and was enrolled in school in Paramount, CA. Now you can’t get much more “Watts” than that. I know how hard it is to get ahead in those kind of schools and am proof it can be done. Too many people keep feeding kids the old line that they are disadvantaged thus taking away the desire to learn. Instead of instilling in them the desire to move forward and the knowledge that they may have to try harder but can get ahead also. Besides, the kids who have the best grades in schools try harder to get into elite colleges where those with lower grades usually opt to get into any college available to them and there are numerous ones available.
You are overlooking the kids that are pulled out of school in the middle of the school year and it happens, believe me, and by switching schools, miss a lot of the basic training in math, and certain other subjects. All schools do not teach from the same class books.This is a mobile society and that alone makes it tougher for a kid to excel in those classes but much of the problem is also due to mediocre teachers who did not excel in their own classes settling on teaching as they get tenure, the summer off and can have helpers in class to take some of the load off of them. Teachers get paid even if they are lousy teachers. Many really don’t care if the kids get the help they need. Much of the problem is the school system. Lack of instilling in the child the belief that he/she can excel if he tries hard enough. and is given the training they need while still in grade and high school. The schools have been dumbed down and the child is no longer the center of the learning experience. Once they get tenure, a teacher can take off and the kids are stuck with a temp that really does not know the days class load. Try firing a teacher that doesn’t produce or care whether the kids learn or not. It is the schools that need to be changed, take out the unions, and put the emphasis on the kids and we can give all the education they need. Our universities are not geared to teach kids what they do not learn in High school. Many who drop out of school go on later in life, get their GED and continue on into college. For Gods sake, don’t dumb down our universities too. The change there should be to get the politics out of them so kids who are not democrats can have the same chance to speak out as the radicals and liberals do.
My assumption is that too many kids are discouraged by lack of good teachers in high school and having not gotten the proper teaching to continue on, thus the drop out rate. However, a kid who really wishes to excel can do so with the right encouragement at home and the determination. However, my point was that the current admissions process of our colleges are geared for AA and that means that many times those with the most potential are passed over so a student of a certain ethnic or diff. nationality can attend regardless of their ability. It is sad but true, academically some are turned down due to the civil rights laws which in my opinion in this day and time is unjust. My opinion only
Given the Michigan decision which says state voters can decide what constitutes discrimination and what’s therefore legal, I’m wondering what happens if a majority of state voters, say in Kansas, vote to make Christianity the state religion? The statute if carefully written by oh, let’s say…ALEC…would not forbid other religious practices but would simply make Christianity the official state faith, kind of like the official state tree, or bug, or song.
In a related matter, I’m wondering what Professor Turley and his class think the upcoming Hobby Lobby SCOTUS decision will be based on, as it appears to touch on civil rights/First Amendment. Perhaps it will come to be called Affirmative Action for Religious Corporate Persons or something like that. Will some atheist corporation then sue before SCOTUS to overthrow that “affirmation,” so to speak? If so, would that atheist corporate person have a chance, given the religious affiliations of the Justices? Would the whole Court have to recuse itself? Legal minds reel.
It’s exciting to consider that Hobby Lobby could prove to be another turning point for the US to become corporately religious in its now multiple forms of personhood.
“We’ve made enormous strides, but you’re going to continue to see this percolate up every so often. And I think that we just have to be clear & steady in denouncing it, teaching our children differently.”
Paul,
Scores of athletes get admitted even though their scores are less than many non-athletes whose scores are higher. Getting the minimum score to be eligible for scholarships under NCAA rules is a separate threshold from actual admittance qualifications. Please share your evidence for the claims that lineman in football generally get lower scores and your alleged hierarchy of scores by position.
Paul Schulte
Dredd or Keebler – thought you should know that the APA dropped narcissism as a mental illness in the latest DSM.
=========
See above video of mine, because it applies to your misdiagnoses of everything racial.
The analysis of group insanity has never been invented in the U.S.eh?
You confuse individual narcissism with group narcissism.
Symbolic racism is a cultural narcissism, a group narcissism, which does not apply to an individual’s problems.
The APA DSM is for diagnosis of individuals.
Ask any individual.
Unless I am mistaken, you are not the only sufferer in our culture, not the uber individual.
Ah, I get what the symbolic racist talk is about now.
For you folks who think “the free market system” is the way to fix our racist-bully infected society, here is a little ditty that informs about operating on the wrong patient:
Strikes me as predictable that Fox would have the pretty blonde “victim” face off with a strident woman of color instead of say, Mr. Turley or some legal scholar who opposed the SCOTUS Michigan decision. It would be interesting to know what the consequences were for Ms. Gratz’ failure to get into U of Michigan due to her claimed discrimination. Was she unable to earn a degree at some other state institution? Has she been unemployed or otherwise hurt socially or economically as a result?
And, if the Court decision cited by Wallace in the beginning of the show was struck down by this latest one…what changed to justify overthrowing that legal precedent? Perhaps the political make up of the Court or the “reasoning” that racism has ended or some obscure legal rationale based on “constitutional textualism” or some other theory/ideology? No doubt Chief Justice Roger Taney thought the Dred Scott decision was fair and well reasoned, rooted in the Constitution. Was he a racist?
There’s also some interesting word play at work in this “debate.” It’s all well and good to claim the Justices are or are not racists. Who knows except by their behaviors and words? An easy claim to make either way. It sets off the clucking noises of who’s “the real victim” which is a distraction that suits the “drama” of corporate tv and media. (See Cliven Bundy.) But that oscures the real factors of this decision like so many others by this SCOTUS: the decision’s real world impact.
Because, to non-lawyers at least, it’s the consequences of SCOTUS decisions that matter to society as a whole beyond the legalese and debating society confines of law school.
What Professor Turley and likely his students seem to have missed is the larger context of how this decision by SCOTUS fits into a growing pattern of decisions that support economic and social bias favoring the wealthy and corporate interests in our political system of which the Court is a part, despite their black robes and poses of “objectivity.” Jim Crow laws had specific economic and social intents and consequences by those who imposed them and the imposed upon. Guess who benefited and who didn’t? This ruling, like Citizens United and McCutcheon and more to come, have consequences which will affect lives. And, unlike Ms. Gratz, those consequences for many will be negative beyond hurt feelings or legal theory.
Today, thanks to the Roberts Court even more than its predecessor, there is a steady and accelerating erosion of legally enforceable equal opportunity for social/economic advancement by those, regardless of race or ethnicity, not lucky enough to be born to wealth or economically advantaged families. The latter can be assured that the “merit” of legacy admission or sizable financial donation will open the door to university. Just ask George W. Bush.
Fox could have had the strident women of color face off against the owner of the Clippers.
PS,
Hasn’t science established that Indians on the North American continent immigrated, millennia ago, from Asia around the Alaskan land bridge? Doesn’t that make them Native Asians?
The SCOTUS should have declared “civil rights” (whatever that means), discrimination, affirmative action, etc. frivolous filings without a need for consideration of constitutionality.
The Constitution established the freedom of the individual and his cogitations, speech, press, etc. which absolutely includes the freedom to discriminate as to whom one loves, hates, socializes with, hires, etc. The law has gone too far when it compels morality; when it compels people to love rather than simply prohibiting theft and bodily injury.
Has anyone noticed the bias, discrimination and hypocrisy on the football field, basketball court, etc. The athletes are in those arenas based solely on merit with the decision to hire made only by the team owner without governmental interference. Funny, isn’t it? A whole bunch of filthy, stinkin’ rich guys, who fight, frequently abuse women and violate the steroid laws in a totally race-biased environment but they are never criticized for any of these evils.
Looks to me like discrimination was replaced with discrimination.
Nick,
your assertion that the athletes who do gain admission are overwhelmingly black is based on what facts? It is only “odd” if you make your assumption that only unqualified blacks are taking seats away from qualified non-athlete students. White, Black and other minority athletes are given seats and scholarship money that other qualified students, of all colors, are unable to obtain since they are not athletes.
And, as we know, unqualified black athletes are still gonna gain admission, because they are a gold mine for ticket sales and TV contracts.
Nick – unqualified athletes do not gain admission regardless. That is not to say that some hanky panky does not go on from time to time, but somebody usually catches it before the student either graduates or is drafted, or drops out. All students have to take the same test and get the same minimum score. Some have to take the test several times before they get that score, but so do other entering freshmen. For football players, the ones who play the defensive line get the lowest scores, then the offensive line, then the linebackers, then the full backs, then the wide outs, then the quarterbacks. The more you get hit regularly, the more likely you are to have a low score. However, that being said, I have met some very smart defensive and offensive linemen.
Raff, The athletes who way too often do gain admission w/o even close to the credentials needed are overwhelmingly black. So, that is an odd assertion on your part.