Saturday, April 26, 2014

156.5 - Outrage of the Week: SCOTUS ignores racism, undercuts affirmative action while pretending it didn't

Outrage of the Week: SCOTUS ignores racism, undercuts affirmative action while pretending it didn't

Now it's time for our other regular feature, it's the Outrage of the Week.

To me, this is an incredible moral and ethical outrage. I still, even now, can't think about it without the answer swelling up in me.

On Tuesday, April 22, the Supreme Court upheld the state of Michigan's ban on using race as a factor in college admissions. Put another way, the Supreme Court said Michigan - and the seven other states with similar provisions - can ban affirmative action in higher education.

Put a bit more directly, the Supreme Court said Michigan can actively prevent public colleges and universities from attempting to expand opportunities available to minority students.

Put honestly, the Supreme Court just declared that Michigan can recreate and maintain the institutionalized racism and good ol' boy networks that produced the sorts of lily-white colleges and universities we so commonly saw before affirmative action programs were started.

And considering what a battering affirmative action has taken over the years, considering how confused the meaning has become to most people, considering how it's something often said with a sneer now, we should take a moment to remember what affirmative action is.

The term was first used by President Kennedy in 1961 to refer to redressing wrongs that hadn't been remedied by legislation. In 1965, President Johnson referred to it this way:
You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say you are free to compete with all the others, and still just believe that you have been completely fair.
He later said something about how you can't just take someone to the threshold of the door of opportunity and leave them there, you have to make sure they could cross that threshold.

Here's how I explain affirmative action: Imagine there are two people in a foot race, with one of them wearing ball and chain. After a time, the other runner is going to be far ahead. You can't just decide "Hey, this is unfair," stop the race, say "Everybody stay where you are," remove the ball and chain, and say "Okay, now the race is fair; race on" and pretend you've done enough. If you were actually going to have a fair race, you had to do something to undo that past unfairness that had created the gap between the runners. That is, you couldn't just passively declare fairness, you had to affirmatively seek it.

That is, you had to take affirmative action to redress that inequity. Thus the term and thus the meaning. And wouldn't you know it, once you got past the obvious stuff, the obvious bigotries, the obvious examples of racism, one you got through the easy part, it turned out that redressing centuries of inequity, generations of social oppression and economic inequality, what do you know, it got a little complicated. And that made it uncomfortable for those who benefited from that old inequity, even if they didn't recognize that benefit; in fact, especially if they didn't recognize it.

That benefit is what's known as white privilege. And as much as so many of us want to deny it, of course white privilege exists. Of course you, most of you out there, benefit in a thousand small ways, I benefit, we all benefit every day in our society, from having a white skin.

You benefit every day mostly because of assumptions that are not made about you because of the color of your skin. The things that because you are white, people do not think about you.

You can look at any region of this country, think of moving to any region of this country, and be confident you can find a place you can afford in a place you'd want to live without worrying if your neighbors are going to be hostile to your very presence once you get there.

You can walk past white women without seeing them take a tight grip on their purses.

You can go into a store and not have security watch your every move.

You can get a job or go to a school that has some kind of affirmative action program without others assuming that you only got there because of your skin color and that you don't really deserve to have that job or be in that school.

You don't feel the same wrench in your guts when you're walking down a street and a cop car starts driving slowly next to you.

You don't have to teach your kids about being sufficiently submissive and deferential to a cop.

You don't worry that if your teen-age child goes out wearing a hoodie or plays their music too loud in their car that they will get shot down by a gun-wielding George Zimmerman or Michael Dunn.

You don't think about that. You don't think about how day in and day out, you are privileged in so very many ways by the color of your skin. And the thing it, of course you don't think about it. Of course you don't. One of the things that marks social privilege is it being so natural to you, so much a part of your day to day existence, that you are quite literally unaware of it unless you consciously and deliberately set out to consider it. For you, privilege is just the way it is.

The result is that when anyone who does not share in that sort of privilege is given any opportunity to do so, to have some share of that same privilege, you feel that something is being denied you, you feel that they are getting some sort of "special treatment" even though all they're trying to get is the same treatment which you have been getting all along, but you feel they're getting something which you are not, that you are being denied something, something you - if you will - instinctively feel, which you have been socialized to feel, is yours by right.

The result - in retrospect what should have been the predictable result - was that attacks on affirmative action began almost as soon as it came into existence and they have continued in legislatures and courts ever since and bit by bit it has been sliced down, trimmed, picked at and nitpicked, subjected to the death of a thousand cuts until it's not much more than a shell.

Which is bringing us toward this most recent decision.

In 2003, in Grutter v. Bollinger, a case involving the University of Michigan Law School, the Supreme found that it was permissible for a school to use race as one factor among many in determining who was admitted.

The fact that race was even one single factor, that race was, quoting the decision, merely a “potential ‘plus’ factor,” even that was just too much for the good citizens of Michigan, who decided this was just totally unfair. So in 2006 voters passed Proposal 2, the (as is normal in such cases, grossly misnamed) "Michigan Civil Rights Initiative" to ban all public institutions from making any use whatsoever of race in admissions or hiring processes. It passed by 58%-42%.

Some people sued over the ban on the use in admissions, arguing that the amendment was discriminatory under the 14th amendment to the US Constitution because it blocked only minority students from seeking preferences in school admissions.

On April 22, the Supreme Court told those people "screw you."

The amendment bans any consideration of race while leaving other forms of preference - such as for veterans and legacy admissions, which is giving children of alumni preference over others - unaffected. But screw you.

It clearly undermines what the Supreme Court itself in the Grutter decision said was a "compelling interest" in having a diverse student body. But screw you.

Oh, but this has nothing to do with affirmative action, oh no not one little tiny thing. In fact, the controlling opinion, written by Justice Anthony Kennedy, goes out of its way to insist the case is not in any way about the use of race as a factor in admissions policies and has nothing to do with the merits of affirmative action. It's all about and only about whether voters in a state can choose to ban it.

Oh, no, the court said, we didn't ban affirmative action, perish the thought. We just said you can ban it.

In fact, Kennedy brushed off any consideration of the impact of the decision on what, again, the court itself had called a "compelling interest" in diversity, writing that “Where States have prohibited race-conscious admissions policies, universities have responded by experimenting ‘with a wide variety of alternative approaches.’" But the fact is that states that forbid affirmative action in admissions have seen a significant drop in the enrollment of black and Hispanic students in their better colleges and universities. In Michigan, at the University of Michigan in Ann Arbor, black enrollment dropped 33 percent between 2006, when the policy was instituted, and 2012. Either Kennedy is incompetently unaware of those facts or, I think more likely, he just doesn't give a damn, emphasized by the fact that he called Michigan's ban just part of "the ongoing national dialogue about” affirmative action. One wonders what sort of dialogue he now envisions occurring in Michigan with this amendment solidly in place.

Because what this case means is that as long as you have a majority, you can limit the opportunities of others. You can limit their chances of overcoming their lack of your privilege. It means if you are in the majority, you can preserve the forms of preference which you use while banning the sorts that are of use to others. It means if you have the popular forms of preference, they can stay. It means that preference is okay so long as it benefits the majority.

What this case means is that the people who by definition don't need affirmative action because they are the majority, because they have the privilege, the people who wouldn't benefit from affirmative action because they don't need it, the people who because of their unacknowledged privilege regard affirmative action as something being taken away from them, those are the people who get to be the people who decide if affirmative action will be allowed.

That's what the Supreme Court - or, if I want to be truly accurate, a 6-2 majority of the Supreme Court - said.

George Washington, who argued the case for the group trying to overturn the amendment, nailed it, calling it "a terrible ruling" and "today’s Plessy v. Ferguson," that being the infamous Supreme Court ruling from 1896 that said racial segregation via "separate but equal" was constitutional.

Washington added that "The Supreme Court has made it clear they want to repeal the gains of the Civil Rights movement” and no, I do not think that is overstated.

Consider that in a 2007 decision that was one of those hacking away at affirmative action, Chief Justice John Roberts, whose portrait is used in the dictionary to illustrate the word "smug," wrote that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

In other words, the way to put an end to racism is to pretend it doesn't exist.

That's what is being claimed here. That's what is being said - and being said in essentially so many words. For example, the Attorney General of Michigan declared the state's ban was about "equal treatment" because it's "fundamentally wrong to treat people differently based on the color of their skin." In other words, racism isn't discrimination, affirmative action - trying to do something about racism - is discrimination, that is what's "treating people differently." Others praised the ruling as "moving toward colorblind government" although one such person's color vision seems remarkably acute: She said there is still more to do at the university, which, she says, is catering to the Black Student Union.

That is what's being argued here: That the best way for us to deal with racism is to act as it it doesn't exist. That our public policy should be to go around with our eyes closed and fingers in our ears, going "lalala there is no racism!"

Justice Sonia Sotomayor wrote a blistering dissent, the longest and most significant dissent of her career so far, which she summarized from the bench, an unusal move that members of the court use to emphasize their strong disagreement with the majority.

Being the majority does not entitle you to rig the game, she wrote. Significantly, she declared openly that "the stark reality" is that "race matters," and she mocked Roberts' 2007 quote with "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." She added that special vigilance is required in light of the history of slavery, Jim Crow and “recent examples of discriminatory changes to state voting laws.”

But she was one of only two voices. The majority, all males, all but one white, all seemingly unable or perhaps just unwilling to recognize their own privilege even when it comes up and taps them on the shoulder, as it must do in a case such as this, preferred to wrap themselves in a fantasy cloaked in sophistry, swinging open a door to a widespread rollback of civil rights gains in higher education and the opportunities those gains created while claiming this decision is so limited as to mean pretty much nothing at all.

It is hard for me to express how much of an outrage I think this decision is - but I can at least say it is the Outrage of the Week.

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