THE BLOG
05/02/2014 02:56 pm ET Updated Jul 02, 2014

The Supreme Court, Affirmative Action, and 'The 99 Percent'

The April 22 Supreme Court decision upholding Michigan's affirmative-action ban starkly demonstrates the limits of what political leadership by the representatives of "The 1 Percent" can achieve in the realms of racial justice and the healing of the racial divide.

Preliminarily, affirmative action today is already strictly limited. Racial quotas in higher education were outlawed in the 1978 Bakke case. Under a 2003 holding, admissions offices can only use race as a factor "in a flexible, nonmechanical way," as part of an evaluation of each student's overall qualifications. Such policies are permissible only after "serious, good faith consideration of workable race-neutral alternatives" has ruled out such alternatives. Racially-sensitive admissions cannot "unduly burden" groups who are not direct beneficiaries. And such programs must be time-limited.

Second, Schuette v. BAMN, the new case, does far more than uphold an affirmative-action ban. As Justice Sotomayor points out, it eviscerates the court's "political-process doctrine," which outlawed subjecting proposed policies that would benefit minorities who have suffered discrimination to a decision-making process that involves higher hurdles than policies that would benefit others. But now people in Michigan who want to strengthen admissions preferences for athletes or children of alumni need only lobby members of the universities' governing boards or work to elect favorable board majorities. In contrast, ethnic minorities who want to advance their interests through a preferential admissions policy face the Herculean task of amending the state constitution.

Third, ethnic minorities are still deeply disadvantaged in our educational systems. The day after the BAMN decision, Democracy Now! interviewed Nikole Hannah-Jones, who wrote ProPublica's recent report, The Resegregation of America's Schools. She explained that real progress in desegregation in the South had been made under federal court orders. In the 1990s, however, in a process sanctioned by the Supreme Court, those orders started being lifted on a wide scale. According to several studies, the majority of schools formerly subject to such orders have been steadily re-segregating. Meanwhile, in the Northeast and Midwest especially, de facto segregation is still real: in New York, twenty-five percent of black students attend virtually all-black schools, and in Chicago the proportion is a third.

And separate is still unequal. Hannah-Jones explained:

[B]lack and brown students tend to be in schools where they're receiving an inferior education. They have a less rigorous curriculum. They're less likely to get access to classes that will help them in college, such as advanced placement physics, higher-level math. And they are most likely to be taught by inexperienced teachers.

As for higher education, Justice Sotomayor cited testimony and studies reporting that states that dropped diversity-promoting admissions policies in higher education also lost considerable minority enrollment. A typical example: In California, which passed a ban similar to Michigan's in 2006, black freshman enrollment at UCLA slid from eight percent in 1995 to three percent in 2011. The Hispanic figure went from 23 percent to seventeen percent, while the proportions of both groups in the college-age population had increased.

With electorates subject to agitation for political agendas like those successful in Michigan and California, defending affirmative action is left to civil-rights groups and their allies. Our so-called political leaders ignore it, oppose it, or, at best, issue a one-time statement criticizing the attacks. When the Civil Rights Movement was strong, we had responsive courts and leadership from some of our politicians, but not as that movement has waned. (In an April 2 Princeton Alumni Weekly interview, Todd Purdum, author of a book on the passage of the Civil Rights Act of 1964, said then-Attorney-General Nicholas Katzenbach "told me that a motivating factor, not just for the Republicans but for a lot of Democrats, was not so much a high-minded devotion to civil rights but a frantic effort to stop the protests in the streets.")

We have made tremendous progress in recent decades in civil rights and race relations, and yet we still have far to go. "The 99 Percent" need that continuing progress. Minority people need racial justice and an end to stereotypes so that they face neither unfair practical barriers to a safe, healthy, prosperous, and rewarding life, nor small humiliations in daily life and a nagging sense of not being good enough because of who they are. Whites need it so we can let go of needless fear that haunts us in certain situations; subconscious guilt, along with subconscious anxiety about a major minority backlash; deprivation of the richness that comes with being intimately exposed to cultural diversity; and confusion about who harms our real interests and who does not.

"Leadership" by people who are packaged and sold in campaigns primarily funded by "the 1%," is inconsistent on civil rights and improving race relations, for these are not things that their backers generally need. With their first priority being to gain and retain office, what they support is at best what a divided public already wants. Real leadership, educating that public and promoting dialogue, can come, but only from a new populist party, one for which the priority is educating and organizing the 99 Percent, over time, to build a massive movement to take over our own government.

There is nothing surprising about legislative and judicial backsliding on matters of race -- and generally timid executive hand-wringing in the face of it -- under the current structure, and that is not going to change without compulsion from below. The days of building a single-issue movement to do that are past -- there are too many issues to take on, and not enough perceived urgency (or chance of victory) in any to make such movements strong enough. Creating the political will for steady progress on this front and every other needed by the 99 Percent requires us to mobilize ourselves in a new way.

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