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Daisy M. Jenkins, Esq. Headshot

The Roberts Court Gave Affirmative Action Its Last Rites, It's Up to Us to Revive It

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In my birth year, 1948, the Supreme Court of the United States rendered a unanimous landmark decision in Shelley v. Kraemer that racially restrictive covenants, or conditions placed on property deeds and titles, were in violation of the Fourteenth Amendment. This was an important decision for the Shelleys, a Black family who purchased a home in St. Louis with a restriction that barred "people of the Negro or Asian Race" from occupying the property. The ruling was also important for my own family in the mid 1960s, when realtors unsuccessfully blocked my parents' purchase of a California home. Many Supreme Court decisions that followed promoted equality for all citizens, even when voters introduced laws that encroached on those rights.

Fast-forward to 2014 and the Supreme Court, even with a Black justice, is reverting to decisions that resemble Plessy vs. Ferguson, after which Jim Crow laws went unchallenged and condoned for 58 years. In the 6-2 ruling on April 22, the Court said the state of Michigan did not violate the U.S. Constitution when its voters banned affirmative action in 2006. Justice Sonia Sotomayor, in her passionate dissent, said the decision essentially allowed voters to change "the basic rules of the political process...in a manner that uniquely disadvantaged racial minorities."

The controversial ban on using racial criteria in college enrollment has already had a negative impact. In 2006, the last year race could be considered in the University of Michigan's admissions process, Blacks accounted for 6.4 percent of the first-year class. By 2012, Black enrollment fell to 4.6 percent. From 2006 to 2012, Hispanic enrollment also fell by about a quarter, from 5.3 percent to 3.9 percent of the first-year class.

The recent decision is only the latest example of the Roberts' court's continued demolition of historic civil rights legislation. After overturning section five of the 1965 Voting Rights Act last year, Roberts argued that the country has changed, and that blanket federal protection is no longer needed to stop discrimination. But two hours after the decision, Republican Texas Attorney General Greg Abbott announced the immediate implementation of the state's voter identification law, which had previously been blocked by a federal court under that key section of the Voting Rights Act. Galveston County in Texas eliminated the majority of the black- and Latino-held constable and justice positions in the county, a move also previously blocked under section five.

They and others in power rushed to prove Roberts wrong: This country is not ready.

Liberty and equality don't just happen: They must be valued and protected by law. Carrie Severino, chief counsel for Judicial Crisis Network, the right-wing group that lobbied for Roberts' and Alito's confirmations, told CNN "the court reaffirmed the blessings of liberty and equality under law for another generation." But Severino and others seem less interested in the blessing of racial justice. Perhaps they have never had to push through glass or concrete ceilings or unhinge doors of steel to get to a level playing field. Perhaps they never had to suffer the disappointment and frustration of an opportunity lost solely because of race. Their blessing seems to be for liberty and equality to remain elusive for future generations of citizens.

For those of us who feel affirmative action safeguarded us from discrimination, allowing us to pursue our dreams, the recent decision is painful. I now mentor young African-Americans, some of whom I know wouldn't have gone to college without that protection. I'm thinking of one young man in particular who cried of joy upon being admitted to a major university--the first in his family. He is now a software engineer at a Fortune 100 company.

Now affirmative action is dead, or at least being given it last rites, but the struggle for equality for all Americans is far from dead. It's clear that the disenfranchised can't rely on the highest court of the nation. Therefore, Americans, individually and collectively, must commit to doing their part to ensure that all citizens have equal access to the rights guaranteed by the Constitution of the United States:

We must join forces across every sector of our nation and demonstrate civility and mutual respect to counter the hatred and fear that divides our nation. Academic and religious institutions, community organizations (e.g., Urban Leagues, Gay Rights Activists, League of United Latin Citizens , Tribes), government, business and community leaders must collaboratively develop and implement community strategies that promote tolerance and peaceful coexistence. It begins with open communication and active listening and focusing on commonalities that unite instead of differences that divide.

We must get out and vote, even with increased practices in several states that impede voting equality. The 2012 eligible voter turnout was less than 58 percent. "The vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men," said Martin Luther King, Jr., and he's still right.

We must actively engage in the fight to ensure all American children have access to a quality K-12 education to level the playing field to higher education.

As I strive for optimism during this time, along with many bewildered friends and colleagues, I hear a voice saying, What's the use? Yet, there's a second, stronger voice saying, We have to keep trying. President Clinton's words come to mind: "There is nothing wrong with America that cannot be cured by what is right with America." We must choose that second voice and continue fighting for what's right.


Daisy M. Jenkins, Esq. is the President of Daisy Jenkins & Associates and is a member of the City of Tucson Human Relations Commission. She's a public voices fellow with The OpEd Project.