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):