By JEFF MACKLER
The U.S. Supreme Court, in all its majesty, upheld a 2006 Michigan ballot initiative that amended the state’s constitution to ban affirmative action in higher education.
Until now, only a few states have approved such bans, including California, whose 1996 so-called Civil Rights Initiative, Proposition 209, prohibited public institutions from considering race, sex, or ethnicity in admissions policies. Proponents of affirmative action, which is today largely gutted by reactionary court decisions, fear that the Court’s April 22 ruling will lead to yet another onslaught of state initiatives modeled after Michigan’s.
The Court’s decision follows a broad range of assaults on affirmative action based on the racist notion that in the U.S. today racial discrimination has been largely eliminated, and that any program that grants preferences to oppressed nationalities is now a form of “racism in reverse” and/or discrimination against whites!
Virtually every statistic that measures racial inequality with regard to income, wages, academic achievement, percentage of oppressed nationalities in prison and institutions of higher education, health care, life expectancy, etc., marks the fact that in racist America today, the gap has dramatically widened between whites, on the one hand, and Blacks, Latinos, and Native Americans on the other. Indeed, the modest gains of the civil rights era of the 1960s and ’70s have been largely obliterated. In the case of higher education, affirmative action has been limited to modest efforts to solicit increased numbers of applicants from oppressed groups—that is, to slightly broaden the admission pool.
But in the context of the worldwide economic crisis, the trend toward “lily white” has been exacerbated. In higher education at the University of Michigan, as well as at the University of California campuses at Berkeley, Los Angeles, and elsewhere, the already miniscule percentage of Black and Latino enrollment has largely halved from some 5 percent in 1996 to 2-3 percent today.
The court’s decision, as in the past, did not formally ban “affirmative action.” It held that the extremely limited considerations regarding race, constricted by previous decisions to the point of being largely ineffectual, could remain but could be legally eliminated by voters and legislators.
The six-to-two decision concluded that it was not up to judges to overturn the decision of Michigan voters to bar consideration of race when deciding who gets into the state’s universities. The majority decision, written by Chief Justice Anthony M. Kennedy, held that “this case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.”
In short, the “people” and “their state government” have the right to discriminate as they see fit so long as they cloak their discrimination in the form of “equality.” That is to say, no white may be denied equal rights with regard to Blacks—as if the problem in racist America today is discrimination against whites!
In the 1960s and ’70’s, in the face of the massive civil rights movement that shook the United States and reverberated around the world, mass protests forced racist institutions across the country to not only employ affirmative action in the abstract, but imposed strict and required quotas to achieve it. Quotas were applied to public and private institutions alike. Few if any denied that the institutional racism and discrimination that permeated every pore of U.S. society could or would be eliminated by the voluntary action of the discriminating racist institutions or employers themselves. A steel plant in a largely Black community that hired only white workers, for example, was assumed to be discriminating, whatever might be the claims by employers that they were hiring based on “merit” only.
Similarly, in liberal San Francisco, the city government was compelled to accept a “consent decree,” wherein the city’s firefighters, previously close to 100 percent white and male, were compelled to hire and preference the hiring of Blacks and Latinos until their numbers reached the percentage of this population in the city and surrounding area.
On the heels of a massive movement rejecting racism in all its forms, the historic arguments that had become embedded in U.S. society for centuries to justify racist exclusion and segregation were swept aside and affirmative action programs, with teeth, were adopted across the country—only to be slowly eroded in the decades that followed as the movement declined.
The Court’s decision conjures up the infamous 1857 Supreme Court Dred Scott decision, in which Chief Justice Roger B. Taney held that the framers of the Constitution believed that Blacks “had no rights which the white man was bound to respect…” This decision declared that the federal government could not ban slavery in U.S. territories.
Now the Supreme Court has ruled that the federal government cannot strike down discriminatory initiatives that ban any form of equal rights for Blacks!
Justice Sonia Sotomayor, one of the two dissenters, along with Ruth Bader Ginsburg, read her 58-page opinion aloud, warning that the Court could not “wish away” evidence of the nation’s racial inequality: “For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.” “Democratic” America, as is evident with Sotomayor’s dissent, still allows for criticism that reflects reality, provided only that it have little or no real effect.
Justices Antonin Scalia and Clarence Thomas agreed with the outcome of Kennedy’s decision but not with its rationale. Their separate opinion was more blatant, rejecting “racial preferences” in any form, including the most moderate that remain on the books today. The Court’s decision reversed a federal appeals court’s ruling that had struck down the Michigan ballot initiative.
The Court majority essentially agreed that requiring the admissions process to be “colorblind” could not possibly violate the Constitution’s equal protection clause! For these racist justices and their “rationale,” we live in a colorblind society, a truly Orwellian proposition that flies in the face of the cruel reality.
The law books of capitalist America are replete with “rationales” upholding slavery, racist discrimination (“separate but equal”), the prohibition of trade unions to organize, and the McCarthy-era destruction of fundamental civil liberties. All were swept away as a result of defiant mass social movements that refused to accept the language and practices of a society ruled by the rich and powerful. The same will be the case in the years ahead, when working people of every race join forces to challenge capitalist prerogatives and bring forth a new world order representing the interests of the vast majority.
Photo: Chicago Tribune