The trend is frightening. The Supreme Court of the United States (SCOTUS) continues to proceed down a path that discards the civil rights of those on the margins, those who lack opportunity and access and privilege. It began with Citizens United and we saw firsthand how that decision impacted the funding of recent elections. Are we not concerned that a handful of rich people attempted to control the election process? This was an attempt to circumvent our democratic principles.
To fast forward to this week, SCOTUS has left its fingerprints on two more decisions that further marginalize those who lack power and privilege and close the door on opportunity, access and equity.
The Voting Rights Act (VRA) decision ruled that Section 4 of the Act was unconstitutional after less than 50 years of protecting people of color from being disenfranchised as voters. Chief Justice Roberts wrote that the formula used in the 1960s and 1970s must be updated by Congress. The current covered states are: North Carolina, Virginia, Alabama and Mississippi. These states have attempted to or have passed photo voter ID and proof of citizenship laws. No need to update here Justice Roberts. In fact, many other states have attempted the same impediments to vote that are not on the list. Updating will only add to the list. Justice Roberts and the four other Justices seem to believe that racial minorities no longer continue to face barriers to voting. In fact, Roberts states so in his opinion. This is simply not the case. Voter disenfranchisement was a strategy of the Romney/Ryan campaign. The Chief Justice goes on to state in his opinion that, “the country has changed”. Change depends on whose yardstick you use to measure. White folks believe that since we have an African American President we are post-racial. When people of color use their yardstick they see a criminal justice system that targets Black and Brown young men, they see the corporate world still ruled by White men, they see the wealth gap soar to 20:1 with their White counterparts. So to smugly say that our country has changed is disingenuous to those who live on the margins without access and opportunity. Roberts believes that the 40 year old facts (that led to the VRA) do not have a logical relationship to the present day. Wrong again, Chief Justice. History illuminates the present. The current initiatives around voter photo ID and proof of citizenship have their roots in the discriminatory conduct of the 1960s and 1970s. Insidious and pervasive voting discrimination has not come to an end. It is in full force. It now takes other forms and exists in many more states.
A White woman, Abigail Fisher, denied admission to the University of Texas sued the University claiming that the school’s consideration of race in admissions violated the Equal Protection Clause of the Constitution. Prior SCOTUS decisions upheld that the use of race as one of many “plus factors” in an admissions program that considered the overall individual contribution of each candidate (Grutter), while Gratz held unconstitutional an admissions program that automatically awarded points to applicants from certain racial minorities. In Fisher, SCOTUS remanded the case to the Fifth Circuit to assess whether the University has offered sufficient evidence to prove that its admission program is narrowly tailored to obtain the educational benefits of diversity.
Racial minority status is a favorable and positive factor that assists a university’s goal of achieving the educational benefits of a more diverse student body as stated by Justice Powell in the Bakke. The Bakke decision also states that “The attainment of a diverse student body, by contrast, serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes.” While Fisher upholds the tenets of Grutter, it also requires the lower court to review the admissions process so that it is judged under the correct analysis. That analysis means that Texas must demonstrate “that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single important element.”
This all seems well and fine. After all, affirmative action is still intact (with the Michigan affirmative action constitutional amendment before the court); however, SCOTUS continues to whittle away at the foundational principle of affirmative action: opportunity and access for all.
Race is one of the factors that can be considered in the admissions process. It has been so for decades in a different fashion. Abigail Fisher claims that race shouldn’t be a factor; however in her own case it is so. She is a “legacy” applicant and by that I mean she believes her family members who have attended Texas serve as a factor in her admission. Why? Because her White family members have had the access and opportunity to attend Texas for the past decades while students of color have not had the same opportunity. Many students of color are first generation college students. Fisher and the Court fail to recognize this fact.
Why is it so difficult to understand the value of diversity, access and equity? After all, it is a pillar of many businesses in how they recruit employees and market their products and services. Professor Scott Page of the University of Michigan states that “diversity trumps ability”. It flat out works and the University of Texas should not have to narrowly detail its practices and the effects of it. Imagine if your favorite sports team had only one type of player. Think if all your software engineers were all White males over 50. What if the SCOTUS was all White males?
The interesting piece of the Fisher case is the concurring opinion of Justice Thomas. He analogizes the Fisher case with Brown v. Board of Education. In Brown, the Court rules that “separate but equal” education was racial discrimination and violated the 14th Amendment, and Justice Thomas believes the same should be the case in Fisher. The intellectual leap in this argument puzzles me. In Brown, the case dealt with students of color who had been denied equal opportunity to a quality education just as in Fisher. Is the Justice putting White students like Abigail Fisher in that same category of students denied a quality education? The inequities students of color face are long in the history books while Whites students have a history of privilege.
The Court seems to want to move to this shallow concept of “color blindness”. Color should be staring us in the face. Justice Ginsburg said it best about the University’s plan in her dissenting opinion in Fisher, “It is race consciousness, not blindness to race, that drives such plans.”