Civil Rights Lawyer Denounces Supreme Court Decision As “Racist” In Allowing Color-Blind Admissions

Jennifer-Gratz-Shanta-Driver-Univ-Michigan-SCOTUS-ruling-ban-affirmative-action-540x295We 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):

109 thoughts on “Civil Rights Lawyer Denounces Supreme Court Decision As “Racist” In Allowing Color-Blind Admissions”

  1. This is more of a thought question, but what happens if we find out eventually that Obama is/was not eligible to be President? Are all the laws and executive orders null and void? And how about his appointments of people to federal courts? Do they lose their jobs?

  2. Mike,

    Now that was funny…..


    I don’t see why a birther needs pop up this late into the second term…. Nothing better to do I suspect….

  3. John:

    Some people bore others with their paranoid speculations.

    Other people stay on their meds and remain quiet.

    1. rafflaw – can you defeat John’s information? Obama’s near relatives contend he was born there.

  4. “You can fool some of the people all of the time, and all of the people some of the time, but you can’t fool all of the people all of the time.”

    April 1, 2009

    Final Nail In Obamas Lack Of US Citizenship Coffin?

    AP- WASHINGTON D.C. – In a move certain to fuel the debate over Obamas qualifications for the presidency, the group Americans for Freedom of Information has released copies of President Obamas college transcripts from Occidental College. Released today, the transcript indicates that Obama,

    under the name Barry Soetoro, received financial aid as a foreign student from Indonesia as an undergraduate at the school.

    The transcript was released by Occidental College in compliance with a court order in a suit brought by the group in the Superior Court of California. The transcript shows that

    Obama (Soetoro) applied for financial aid and was awarded a fellowship for foreign students from the Fulbright Foundation Scholarship program. To qualify, for the scholarship, a student must claim foreign citizenship.

    This document would seem to provide the smoking gun that many of Obamas detractors have been seeking.

    February 24, 2013

    In his unpublished biography “Journeys in Black and White

    ,” Barack Obama, then a student at Harvard Law School said that he was born in Kenya.

    Obama’s literary agent, Dystel & Goderich, listed Obama as being born in Kenya for a total of 16 years (between 1991 and 2007).

    The firm finally changed Obama’s bio on their website on April 21, 2007.

    Two months before the agency removed the disqualifying information,

    Obama declared his candidacy for president of the United States. Obama made the announcement in Springfield, Illinois, where Abraham Lincoln once delivered his famous “House Divided” speech in 1858.

    Here is the full bio on Obama in a 1991 leaflet:

    “Barack Obama, the first African-American president of the Harvard Law Review, was born in Kenya and raised in Indonesia and Hawaii.

    The son of an American anthropologist and a Kenyan finance minister, he attended Columbia University and worked as a financial journalist and editor for Business International Corporation. He served as project coordinator in Harlem for the New York Public Interest Research Group, and was Executive Director of the Developing Communities Project in Chicago’s South Side. His commitment to social and racial issues will be evident in his first book, Journeys in Black and White.”

    For undisclosed reasons, Obama’s autobiography was cancelled and the book never released.

    However, the promotional material remained as Dystel & Goderich sought to provide a distinguished list of authors it represented.

    On April 3, 2007 Dystel & Goderich’s website read:

    “BARACK OBAMA is the junior Democratic senator from Illinois and was the dynamic keynote speaker at the 2004 Democratic National Convention. He was also the first African-American president of the Harvard Law Review.

    He was born in Kenya to an American anthropologist and a Kenyan finance minister and was raised in Indonesia, Hawaii, and Chicago.

    His first book, DREAMS FROM MY FATHER: A STORY OF RACE AND INHERITANCE, has been a long time New York Times bestseller.”

    That information was posted two months after Obama’s speech in Springfield announcing his intention to run for the White House. Three weeks later, on April 21, the agency changed the bio and stated that Obama was born in Hawaii.

    “BARACK OBAMA is the junior Democratic senator from Illinois and was the dynamic keynote speaker at the 2004 Democratic National Convention. He was also the first African-American president of the Harvard Law Review.

    He was born in Hawaii to an American anthropologist and a Kenyan finance minister and was raised in Indonesia, Hawaii, and Chicago.

    His first book, DREAMS FROM MY FATHER: A STORY OF RACE AND INHERITANCE, has been a long time New York Times bestseller.”

    For 16 years, Obama’s own literary agent listed their author as being

    “born in Kenya”.

    Obama paid $5 million to seal his records

  5. When Affirmative Action became the law of the land over 40 years ago, colleges started dumbing down their curriculum in order to appease the low to mediocre students. More alternative classes and absurd electives were introduced to make it easier for students to learn trivial, or meaningless subjects that would help them graduate.

    Part of the problem today is that many executives, lawyers, politicians, and other professionals, have run-of-the-mill skills and have reached their higher status through affirmative action, quotas, or nepotism.

    We continue to have an outcry for improvements in education and to produce better minds in this country. Agenda’s like Affirmative Action does not and will not allow good education to happen if we continue on this same road. We must raise to a high standard in college education.

    1. The FACT is that affirmative action has been in place in the US and most countries forever. The example of W Bush is proof since he would never have gotten to be President if not for his family wealth and connections. He got into Yale on that basis and certainly proved that a degree from Yale is no guarantee of a good education. Obama is an example of affirmative action in which a person who had no wealth or connections got ahead by hard work and native intellect.

      There are plenty of degrees that are designed for not too bright folks such as Rick Perry who barely got through A&M in his course in animal husbandry. This was back when women and others were not allowed to even attend Texas A&M. This so called concern over this kind of affirmative action is way overblown and shows a willingness to ignore the real discrimination that was practiced in years past and which did not result in wise or intelligent leaders.

      I agree that there are some flaws in the application of AA, but such flaws are not as egregious as that AA of the past. Education is not supposed to make an Einstein out of all the students, nor to only benefit the elite.

      1. randyjet – Obama was heavily connected through his mother’s side of the family (the side he will throw under the bus). There is no indication that Obama did anything by hard work and native intellect at any point in his life. We do know he did not work hard at Columbia (we have that from his biography, stories of classmate and photos), we know that he was not picked for the Harvard Law Review by the faculty(the top students), but rather by the student body (a popular choice). We know he was elected editor of the Harvard Law Review after a long series of votes, held in secret. Since Obama will not show us his records, you cannot make a claim that he is a product of affirmative action.

  6. Neutrality not bias or discrimination. All men are created equal, not the outcome of their lives. Why don’t students who seek admission to a college try the tactic of getting higher grades; grades superior to the competition. Or maybe they want the competition to disappear.

  7. Sorry, hit the wrong key and shut down my main point. Point is college of music may have a quota if supported by the govt. but when applying for a job as a member of an orchestra, it is usually the best of the best that gets in Getting into an orchestra is very different from being accepted to a university where the Govt. is involved and should not be.

  8. Schulte: Regarding orchestra’s……….. Improving your playing ability is not the only criteria used in getting into a school of music. The ability to conduct for warming up the orchestra counts, the experience of having played in a semi-professional jr. orchestra, as well as how well you can play all are under consideration, the no of orchestra camps such as is held in Swanee, TN. Having training in such summer camps gives a student a chance to adapt to being led by numerous professional conductors and musicians expand on their training. all count toward selection of a player in a music college and in semi professional orchestra’s.

    However, I agree those who play best are considered first and to get into a city/ professional orchestra, usually there is a quota as not all players are replaced. there are generally only a few slots available so one darn well better be the best to be chosen and having had training in conducting and having various professional teachers can be a big plus. It shows one’s determination and desire to be the best of the best.

    1. skeptic – I was speaking only of orchestras, not music schools. Things are worse for getting slots now because orchestras are losing funding.

    2. skeptic, Comparing entry into a college to entry into an orchestra is absurd and that you or others think that they are the same ignores the major differences in each case. How about foot races or other competitions if you wish to use college admissions as a valid comparison? College and education is NOT the same as a foot race or getting into an orchestra, and such simplistic “reasoning” shows a serious lack of education.

      As a former flight instructor and teacher, my object was NOT to see who could get the material done the fastest, but to make good, competent, safe pilots and to teach good JUDGMENT in flying. The goal of college is to educate as broadly as possible apart from the mere mechanics of technical knowledge to ALL the students and to give them exposure to new and different ideas and people. For some technical schools such as MIT and the like, there may indeed be a need for an absolute metric for admission, but even there, MIT has expanded its courses, and offerings so that may not be their view any more.

      Paul is unable or unwilling to address the point of what relevance the absolute amount of tax Romney pays has to the question of the tax rate. He may feel he is serious, but I cannot take him seriously since he cannot argue on point.

      1. randyjet – I think I addressed your point, you just did not like how I addressed. It is also clear that you have problems with analogies. So I will explain it. My analogy was that the best and brightest, regardless of race, color or creed get into college or into an orchestra. They should not be held back because of it and they should not be put forward because of it. If race is not on the application, everyone is equal at admissions.

        The truth of college is that if you don’t get into one there is usually another one down the road that will take you. And if not them, then a community college. I used to advise many of my students to start with community college because it was less expensive and they did more hand-holding if you had a problem with a class. At the university you could have 500 students in the same class with you. If you had problems, you were pretty much on your own. There courses transferred to the university so all was good.

  9. randyjet – actually the real poor do not pay income tax, so whatever percentage Romney is paying it is higher.

    I am comparing the selection process of getting into an orchestra to getting into college. The least you could do is try to make the connection. BTW, I am serious as a heart attack. 🙂

  10. randyjet – do you know how orchestra musicians are selected? They all play behind a curtain, so they cannot be seen and then those judged the best musically are invited into the orchestra. They don’t do it by quota.


    “The [CA] proposition forbids [state/public] universities from using race, sex, ethnicity or national origin in admissions.

    “Since then, the number of minority students admitted to the 10-campus UC system has dropped. At UC Berkeley, for example, African-American students made up 7.3 percent of enrollment in 1995. In 2011, they made up 3.9 percent.

    “The UC system has been unable to reverse that decline, though it is trying because all students benefit from a more diverse enrollment, Klein said. Among the factors considered are applicants’ socioeconomic status and where they live.”

    1. I disagree with ruling, but I can understand the reasoning since it does impinge on the right of the voters to decide this issue. There is no right to go to college, just as I say that there is no right to gay marriage. Having said that, it is extremely unwise to put such restrictions in place and limits the ability of schools to get a good student body mix from all areas of the population.

      The best solution is to have a base line of performance, and then to allow the school to decide who to admit based on a number of factors. The Federal government should only get involved when such standards are used to establish an all white or Asian, or black school by denying admission based on race or other factors that are not race neutral. In short, the public should not be able to use the law to affect one part of the citizenry in a disproportionate way to disadvantage another. As one French writer remarked. The law in all its majesty forbids the rich as well as the poor to sleep under bridges.

    2. bettykath – I do not accept HuffPo as a source. If these numbers are legitimate, I am sure there are other sources out there.

  12. Justice Sotomayor said it best:
    “The stark reality is that race still matters,” Sotomayor said, summarizing a dissenting opinion joined only by Justice Ruth Bader Ginsburg. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.”

    Sotomayor said the court’s majority unwisely assumed that the outcome of a voter-passed referendum was unlikely to be influenced by racism. “My colleagues misunderstand the nature of the injustice worked by” the Michigan amendment, she said.

    Read more:

  13. Annie, Paul doesn’t understand your comment or why it’s appropriate. [sign]

    1. bettykath – according to the Rules According to Annie and Chuck, when you make a blanket statement, like you did at 11:00pm, you MUST show proof. This is not me talking here, I am just following their lead.

  14. bettykath – because of the stated concerns of Annie, I can no longer take your word for that. Please send links to figures

  15. Raff, You diminish yourself w/ your intransigence. But, it’s your call to not stipulate to the obvious.

Comments are closed.