Justice Sotomayor’s Powerful Defense of Equality

AP Photo/Steven Senne

Supreme Court Justice Sonia Sotomayor

 Yesterday, the Supreme Court upheld a provision of Michigan’s constitution that bans the state or any of its subdivisions from “grant[ing] preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The Court was fractured; the six justices who voted to uphold the amendment did so for three independent reasons. Written by Justice Anthony Kennedy, the plurality decision—to which Chief Justice John Roberts and Associate Justice Samuel Alito signed on—was narrow: It upheld the amendment without disturbing any precedent. Far more interesting was Justice Sonia Sotomayor’s dissent, which makes a strong case for a robust interpretation of the equal-protection clause of the 14th Amendment and represents perhaps her most compelling work in her tenure on the Court so far.

The case for upholding Michigan’s amendment, which was adopted through the ballot-initiative process, seems compelling at first glance. Even if one agrees that affirmative-action programs are generally constitutional, it surely cannot be the case that the Constitution requires states or the federal government to adopt affirmative-action policies. Had Michigan never adopted affirmative-action policies or had the legislature repealed them, this would presumably not raise a serious constitutional question. So why wouldn’t the citizens of Michigan be able to make the same policy choice? “There is no authority in the Constitution of the United States or in this Court’s precedents,” Kennedy asserts in the plurality opinion, “for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.”

In the most relevant precedent, the Court ruled in 1976 that a Washington constitutional amendment that banned the use of bussing to integrate schools violated the 14th Amendment because it “impose[d] substantial and unique burdens on racial minorities.” Joined by Justice Ruth Bader Ginsburg, Justice Sotomayor makes a powerful argument that this and related precedents require the Court to strike down the Michigan initiative.

The core of the Court’s “political-process” precedents, Sotomayor observes, is that minorities have access to the state’s democratic procedures. The Constitution “does not guarantee minority groups victory in the political process,” but it does “guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals—here, educational diversity that cannot reasonably be accomplished through race-neutral measures.” Reallocating power in the way Michigan does here therefore raises serious equal-protection concerns.

Sotomayor’s dissent cites a landmark Kennedy opinion: Romer v. Evans, in which the Court struck down a Colorado initiative forbidding the recognition of sexual orientation as a protected category under existing civil-rights laws. Sotomayor observes that Romer “resonates with the principles undergirding the political-process doctrine.” The Court forbade Colorado from preventing a disadvantaged minority access to the state and local political processes, even though states are not constitutionally required to pass civil-rights laws.

When burdens are placed on minorities that affect access to the political process, the possibility of discrimination is particularly acute, allowing exclusionary politics to become self-perpetuating.

Sotomayor’s dissent also offers a useful defense of the political-process doctrine and its strong roots in the 14th Amendment. Starting with the famous fourth footnoteof Carolene Products in 1938, the Court has held that state actions that burden minorities should be subject to heightened judicial scrutiny. When burdens are placed on minorities that affect access to the political process, the possibility of discrimination is particularly acute, allowing exclusionary politics to become self-perpetuating.

It is instructive that in their concurrence Justices Antonin Scalia and Clarence Thomas mock the influence of Carolene Products: “We should not design our jurisprudence to conform to dictum in a footnote in a four-Justice opinion.” This is grimly ironic, given that Justice Scalia and Justice Thomas recently joined an opinion gutting the Voting Rights Act based on highly implausible bare assertions made by dicta in an opinion written by Chief Justice Roberts less than five years ago. With respect to Carolene Products, conversely, what matters is not merely the footnote in one opinion but the fact that it conforms to the 14th Amendment, and was elaborated on in many subsequent cases. Several of these precedents were the political-process rulings that were supposed to control the outcome in yesterday’s case. As both Scalia from the right and Sotomayor from the left argue, it’s hard to deny that these precedents have been silently overruled, even if the plurality says otherwise.

The consequences of Michigan’s constitutional amendment illustrate the ongoing relevance of the Court’s equal-protection precedents. As the dissenters point out, the percentage of African-American students getting degrees from the University of Michigan was the lowest since 1991 after the amendment passed. In addition, the percentage of racial minorities in freshman classes at Michigan’s flagship university has steadily declined—even as racial minorities comprise an increasing percentage of the state’s population. This does not in itself prove that the Court was wrong to uphold it, but it does show that the elimination of affirmative action is unwise, and at a minimum the Supreme Court should show deference to elected decision-makers who determine that it is necessary.

Race-Blind Admissions Are Affirmative Action for Whites

Race-Blind Admissions Are Affirmative Action for Whites

EDMUND ZAGORIN

APRIL 21, 2014

In 1994, University of Michigan rejected Jennifer Gratz, setting in motion the overturning of state’s affirmative-action policy. Now, she’s challenging a black student who’s protesting her own rejection.

Brooke Kimbrough always dreamed of becoming a University of Michigan Wolverine. Her score on the ACT—a college-readiness test—dwarfs the scores of most of her classmates. Earlier this month, she was part of a winning team at the National Urban League Debate Championship in Washington, D.C. Last week, she became a powerful symbol for exactly how Michigan’s race-blind college admissions policies have failed.

In December, the University of Michigan informed Kimbrough that her application for admission had been wait-listed. Two months later, she received the letter that she had not been accepted. But instead of conceding defeat, Kimbrough decided to fight. Today she hopes that her story will highlight how Michigan’s current approach to race in admissions fails exceptional students of color. Black students comprise just 4.6 percent of the 2012 freshman class; in 2008, the number was 6.8 percent.

Over the course of this year, I had the honor of working with University Preparatory Academy debate coach Sharon Hopkins, who guided Kimbrough and her partner, Rayvon Dean, to victory. Shortly after her team won the debate championship, I spoke with Kimbrough about her protest of the University of Michigan’s admission policy.

“This isn’t about me,” Kimbrough said. “That’s not why I’m doing this. The real problem is when students are denied and don’t speak up, don’t question the system that failed them.” To that end, Kimbrough has joined with the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) to advocate for the rights of black students in admissions and on campus.

Nearly 15 years ago, Jennifer Gratz, a white high-school senior, was denied admission to the University of Michigan. Rather than keeping quiet, she also fought. Gratz began by mounting a coordinated legal and media battle to challenge her rejection. In 2003, the Supreme Court ruled in her favor, and its decision in Gratz v. Bollinger ended the university’s system of preferential admission based on race. Encouraged by this victory, Gratz and other opponents of affirmative action went on to champion a statewide ballot initiative that completely banned any use of race as a criteria for admissions at Michigan’s public universities.

At the University of Michigan, the years following the high court’s decision have seen a precipitous drop in the number of African-American students. For Kimbrough, who uses discussions of racial privilege and cultural politics in her debate competitions, her rejection from Michigan became an opportunity to highlight a concrete instance of colorblind discrimination.

While both Gratz and Kimbrough fought their decisions, Jennifer Gratz bristles at comparisons. “I fought for all applicants to be treated equally—as individuals, without regard to race,” Gratz said in a comment on the Detroit News website. “This woman is standing up for group rights and asking for preferential treatment based on race while others are discriminated against, she wants unequal treatment. Ms. Kimbrough is fighting because she wasn’t accepted; I fought because of discrimination in the admissions process, a major difference.”

What critics of affirmative action like Gratz don’t talk about, and what they aredeeply invested in keeping hidden, is the racial violence and culture of white aggression that intensifies and pervades campus life for students of color when affirmative action policies are taken away. This dirty secret was blown apart earlier this year when University of Michigan’s Black Student Union decided that they’d had enough, launching the viral Twitter campaign known as #BBUM (Being Black at U-M). Stories ranged from hurtful micro-aggressions to racial slurs to threats of physical violence. Overall #BBUM highlighted the dysphoria of a campus population of color whose number is in steep decline.

But so incensed is Gratz, 37, that she has challenged Kimbrough, 17, to a public debate on the issue of affirmative action, according to the Detroit Free Press. In an apparent attempt to appear gracious, Gratz, citing her potential opponent’s youth and inexperience, offered to allow Kimbrough to include a BAMN representative on her side of the debate.

The attitude expressed by Gratz betrays a seemingly willful obliviousness to the fact that no group experiences more affirmative action than white people. Michigan’s formal pro-white affirmative action policy, colloquially known as “legacy preference,” puts the children of alumni ahead of other applicants. It unquestionably favors the white and the wealthy, at the expense of the poor and the black. Outside of the U.S., legacy admissions mostly went the way of feudalism. But at many U.S. universities, and especially at Michigan, legacy admissions amount to an eternal parade of white pride.

Why does legacy preference work this way? Because it reinforces the demographic power of previous generations of whites that benefited from dozens of explicitly segregationist federal and state institutions. Those institutions, from the New Deal to the G.I. Bill, helped whites out of Depression-era poverty while explicitly disadvantaging blacks, locking whole communities into cycles of violence and misery. “When I think about the fact that my grandmother’s grandmother was a slave baby—like, literally owned as property—and then I hear people talk about how whites don’t experience affirmative action from legacy, it’s so frustrating,” Kimbrough said. “People want to put that behind them. They’d prefer not to think about it. The thing is that black people can’t put that history behind us because we live it every day.”

And legacy doesn’t even scratch the surface of the biggest instrument of racial discrimination in so-called “race-blind” university admissions: standardized testing.Most scholars of education policy agree that the ACT testing process, like the SAT, favors wealthy white students from suburban environments at the expense of students who are poor black and urban. This favoritism is often deemed a “necessary evil” of education policy, done in the service of meritocratic apples-to-apples comparisons of students’ analytical skills. There are many reasons for performance disparities, from cultural assumptions of the test writers to unequal access to prep materials and tutors.

“We don’t have time to prep for the ACT the way some students do,” Kimbrough explains. “I come from a single-parent household. We worry about keeping the lights on and food on the table. Even though I want to go to college, people have to understand that the ACT isn’t a priority. Michigan talks about ‘holistic’ admissions. I wonder what’s so holistic about it.” Standardized testing is literally the example given in sociological texts to define the term “institutional racism”.

It must be nice to live in the world of Jennifer Gratz. It is a world in which America somehow happened without colonialism or slavery, where we are born into bodies in which race is invisible (which is how the concept of race generally functions for members of the white majority). In Gratz’s worldview, disparities in wealth and access to public goods have no bearing on the measure of that mystical quotient of “ability”.

“Public universities are supposed to represent us,” says Kimbrough. “Blacks and Latinos are 14 percent of the population, and yet our public universities can’t represent us. We pay taxes for that university to stand as tall as it does. It’s sad.”

The American Prospect

OCG Book November, 2013 – “Faces At the Bottom of the Well”, Professor Derrick Bell

ABOUT

During each month, the broadcast will feature a recommended book to the audience.  The last Saturday of the month will provide a live segment to be focused on getting impressions and thoughts from listener readers. We will attempt to feature a relevant guest for each book.

 

OCG Book November, 2013

“Faces At the Bottom of the Well”, Professor Derrick Bell

Discussion Date: November 30, 2013

Your comments as you read are welcomed here.

The noted civil rights activist uses allegory and historical example to present a radical vision of the persistence of racism in America. These essays shed light on some of the most perplexing and vexing issues of our day: affirmative action, the disparity between civil rights law and reality, the “racist outbursts” of some black leaders, the temptation toward violent retaliation, and much more.

 

ABOUT Derrick Bell

 

Derrick Albert Bell, Jr. was born on November 6, 1930 in Pittsburgh, the eldest of four children. At an early age, Derrick’s parents, Ada Elizabeth Childress Bell, a homemaker, and Derrick A. Bell, Sr., a millworker and department store porter, instilled in him a serious work ethic and the drive to confront authority.

Derrick was the first person in his family to go to college. He attended Duquesne University, where he earned an undergraduate degree and served in the school ROTC. He then served as a lieutenant in the United States Air Force, where he was stationed in Korea and Louisiana.

In 1969, Derrick joined the faculty of Harvard Law School; in 1971, he became the first black tenured professor on the faculty of the law school. In 1973, Derrick published the casebook that would help define the focus of his scholarship for the next 38 years: Race, Racism and American Law. The publication of Race, Racism and American Law, now in its sixth edition, heralded an emerging era in American legal studies, the academic study of race and the law.

In 1980, Derrick became the Dean of the University of Oregon School of Law, becoming one of the first African Americans to serve as dean. That same year, he published a seminal work Brown v. Board of Education and the Interest Convergence Dilemma, 93 Harv. L. Rev. 518 (1980), in which he argued that white Americans would only support racial and social justice to the extent that it benefits them. His argument that the Supreme Court’s decision in Brown was driven, not by concerns over genuine equality and progress for black Americans, but rather by concerns over the nation’s emerging role as an anti-Communist military superpower, sent tremors through the legal academy.

In 1986, Derrick resigned his position as Dean of Oregon Law in protest of the faculty’s refusal to hire an Asian American female professor. He returned that same year to Harvard.

Soon after Derrick’s return to Harvard Law School, he staged a five-day sit-in in his office to protest the law school’s failure to grant tenure to two female professors of color. With student support, Derrick launched a protest movement at Harvard Law School that received national attention.

Derrick saw the parallels between his work as a civil rights lawyer and a leader for the students’ demand for increased diversity on the law school faculty. In 1990, after years of activism around the hiring and promotion of female professors of color, Derrick took an unpaid leave of absence in protest from Harvard Law School. He would never return. After refusing to end his two-year protest leave, Harvard University dismissed Derrick from his position as Weld Professor of Law.

During this tumultuous time, Derrick met Janet Dewart. As the communications director of the National Urban League, Janet called Derrick for permission to publish one of his fictional stories. This conversation was the spark of a new relationship, and they were married in June 1992.

During his long academic career, Derrick wrote prolifically, integrating legal scholarship with parables, allegories, and personal reflections that illuminated some of America’s most profound inequalities, particularly around the pervasive racism permeating and characterizing much of American law and society. Derrick is often credited as a founder of Critical Race Theory, a school of thought and scholarship that critically engages questions of race and racism in the law, investigating how even those legal institutions purporting to remedy racism can more profoundly entrench it.

After a valiant battle with cancer, Derrick Bell died on October 5, 2011. In Derrick was an incredibly spiritual man with a deep appreciation for gospel music. As such, it is only fitting that a biblical verse sums up the extraordinary life of Derrick Bell: “Well done, my good and faithful servant.” Matthew 25:23

And, he discusses “Faces . . .” on C-Span

 

Join our discussion of a featured book, each month.

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‘When Affirmative Action Was White’: Uncivil Rights

‘When Affirmative Action Was White’: Uncivil Rights

 
By NICK KOTZ
Published: August 28, 2005
After years of battling racial discrimination and braving state-sanctioned violence — with hundreds of Southern black churches set fire to and scores of citizens beaten or murdered for daring to challenge American apartheid — the civil rights movement achieved a climactic victory when President Lyndon Baines Johnson signed the Voting Rights Act on Aug. 6, 1965. It was the outcome of ”a shining moment in the conscience of man,” declared the Rev. Martin Luther King Jr. In less than two years, the nation did more to advance equal rights for minorities than at any time since Abraham Lincoln signed the Emancipation Proclamation.

Ray Bartkus
WHEN AFFIRMATIVE ACTION WAS WHITE
An Untold History of Racial Inequality in Twentieth-Century America.
By Ira Katznelson.
238 pp. W. W. Norton & Company. $25.95.

The 1964 Civil Rights Act struck down the South’s segregation laws, outlawed employment discrimination and forbade discrimination in federal programs. For black Americans living in the South, the voting rights law finally secured the right to the ballot. And President Johnson initiated a sweeping new government policy called affirmative action. Its purpose was to overcome at least some of the accumulated human damage caused by 350 years of slavery and Jim Crow, and to ensure further progress toward equality.

Benefiting from that ”shining moment” in the 1960’s, a black middle class has prospered and grown rapidly. Yet millions of African-Americans remain mired in poverty in a nation bitterly divided over whether special help to minorities should continue. Affirmative action programs have long been under siege, vigorously attacked in Congress and the federal courts and criticized for ”discriminating” against the white majority. With conservatives dominating the federal government, civil rights groups and other liberal organizations have waged a mostly defensive battle to protect the gains of the 1960’s. Fresh ideas and effective leadership to advance the American ideals of equality and social justice have been in short supply.

Ira Katznelson, the Ruggles professor of political science and history at Columbia University, enters this fray with a provocative new book, ”When Affirmative Action Was White,” which seeks to provide a broader historical justification for continuing affirmative action programs. Katznelson’s principal focus is on the monumental social programs of Franklin Roosevelt’s New Deal and Harry Truman’s Fair Deal in the 1930’s and 1940’s. He contends that those programs not only discriminated against blacks, but actually contributed to widening the gap between white and black Americans — judged in terms of educational achievement, quality of jobs and housing, and attainment of higher income. Arguing for the necessity of affirmative action today, Katznelson contends that policy makers and the judiciary previously failed to consider just how unfairly blacks had been treated by the federal government in the 30 years before the civil rights revolution of the 1960’s.

This history has been told before, but Katznelson offers a penetrating new analysis, supported by vivid examples and statistics. He examines closely how the federal government discriminated against black citizens as it created and administered the sweeping social programs that provided the vital framework for a vibrant and secure American middle class. Considered revolutionary at the time, the new legislation included the Social Security system, unemployment compensation, the minimum wage, protection of the right of workers to join labor unions and the G.I. Bill of Rights.

Even though blacks benefited to a degree from many of these programs, Katznelson shows how and why they received far less assistance than whites did. He documents the political process by which powerful Southern Congressional barons shaped the programs in discriminatory ways — as their price for supporting them. (A black newspaper editorial criticized Roosevelt for excluding from the minimum wage law the black women who worked long hours for $4.50 a week at the resort the president frequented in Warm Springs, Ga.)

At the time, most blacks in the labor force were employed in agriculture or as domestic household workers. Members of Congress from the Deep South demanded that those occupations be excluded from the minimum wage, Social Security, unemployment insurance and workmen’s compensation. When labor unions scored initial victories in organizing poor factory workers in the South after World War II, the Southern Congressional leaders spearheaded legislation to cripple those efforts. The Southerners’ principal objective, Katznelson contends, was to safeguard the racist economic and social order known as the Southern ”way of life.”

Katznelson reserves his harshest criticism for the unfair application of the Servicemen’s Readjustment Act, known as the G.I. Bill of Rights, a series of programs that poured $95 billion into expanding opportunity for soldiers returning from World War II. Over all, the G.I. Bill was a dramatic success, helping 16 million veterans attend college, receive job training, start businesses and purchase their first homes. Half a century later, President Clinton praised the G.I. Bill as ”the best deal ever made by Uncle Sam,” and said it ”helped to unleash a prosperity never before known.”

But Katznelson demonstrates that African-American veterans received significantly less help from the G.I. Bill than their white counterparts. ”Written under Southern auspices,” he reports, ”the law was deliberately designed to accommodate Jim Crow.” He cites one 1940’s study that concluded it was ”as though the G.I. Bill had been earmarked ‘For White Veterans Only.’ ” Southern Congressional leaders made certain that the programs were directed not by Washington but by local white officials, businessmen, bankers and college administrators who would honor past practices. As a result, thousands of black veterans in the South — and the North as well — were denied housing and business loans, as well as admission to whites-only colleges and universities. They were also excluded from job-training programs for careers in promising new fields like radio and electrical work, commercial photography and mechanics. Instead, most African-Americans were channeled toward traditional, low-paying ”black jobs” and small black colleges, which were pitifully underfinanced and ill equipped to meet the needs of a surging enrollment of returning soldiers.

The statistics on disparate treatment are staggering. By October 1946, 6,500 former soldiers had been placed in nonfarm jobs by the employment service in Mississippi; 86 percent of the skilled and semiskilled jobs were filled by whites, 92 percent of the unskilled ones by blacks. In New York and northern New Jersey, ”fewer than 100 of the 67,000 mortgages insured by the G.I. Bill supported home purchases by nonwhites.” Discrimination continued as well in elite Northern colleges. The University of Pennsylvania, along with Columbia the least discriminatory of the Ivy League colleges, enrolled only 46 black students in its student body of 9,000 in 1946. The traditional black colleges did not have places for an estimated 70,000 black veterans in 1947. At the same time, white universities were doubling their enrollments and prospering with the infusion of public and private funds, and of students with their G.I. benefits.

Katznelson argues that the case for affirmative action today is made more effectively by citing concrete history rather than through general exhortations. Studying the New Deal, the Fair Deal, the Great Society and the civil rights movements of the 1960’s could not be more relevant at a time when the administration seems determined to weaken many of the federal programs that for decades have not just sustained the nation’s minorities but built its solid middle class. Whether or not Katznelson’s study directly influences the affirmative action debate, it serves an important purpose. With key parts of the Voting Rights Act set to expire in 2007 and other civil rights protections subject to change, we must understand a continuing reality: the insidious and recurrent racial bias in the history of American public life.

Nick Kotz, a journalist and historian, is the author of ”Judgment Days: Lyndon Baines Johnson, Martin Luther King, Jr., and the Laws That Changed America.”

Moving Beyond Affirmative Action – NYTimes.com

Moving Beyond Affirmative Action – NYTimes.com.

 

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Anna Parini

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ON Wednesday, the Supreme Court will hear oral arguments in Fisher v. University of Texas, the latest in a long line of conservative assaults on affirmative action that dates to the late 1970s. Nearly a decade has passed since the court, in Grutter v. Bollinger, approved the continued use of race as one factor in an individualized, “holistic” review of an applicant’s qualifications for higher education. Now even such limited consideration of race is being challenged.

SCOTUS and Abigail Fisher: The Girl Who May Kill Affirmative ActionPolitical News and Opinion from a Multicultural Point of View | Political News and Opinion from a Multicultural Point of View

 

From immigration to healthcare, the United States Supreme court ended its Spring term with major rulings. The Court upheld both a key component of thecontroversial S.B. 1070 Arizona immigration law, and “Obamacare.” However, the Supreme Court has all but exhausted cases of major importance.

When it returns to session in October, the Supreme Court is scheduled to rule on Fisher vs. University of Texas, a case concerning Affirmative Action policies in higher education. Affirmative Action policies have been controversial since their inception. It will be up to the Court to either uphold their legitimacy, strike them down, or modify the rationale for their existence to ensure they serve a compelling purpose.

Affirmative Action is a set of policies that require that special consideration be given to ethnic minorities and women who apply for academic, job, or contracting opportunities. Such policies usually involve setting timetables for increasing minority representation in these institutions, and use recruitment, preference or reserved positions to achieve these timetable goals.

The rationale behind Affirmative Action has evolved over time. As the Supreme Court prepares to rule on this case, it’s important to contemplate whether Affirmative Action continues to provide a valuable service.

The Origins of Affirmative Action: Creating a Level Playing Field

Full Article

SCOTUS and Abigail Fisher: The Girl Who May Kill Affirmative ActionPolitical News and Opinion from a Multicultural Point of View | Political News and Opinion from a Multicultural Point of View.

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