07/02/2013 10:02 am ET Updated Sep 01, 2013

Affirmative Action Needed Now More Than Ever

Just how far back the cause of racial justice was set this past week depends on your view of "current conditions." On affirmative action, the Supreme Court kicked the can down the road with a non-decision and then, to paraphrase Congressman John Lewis, the court thrust a dagger in the heart of the Voting Rights Act. In that ruling, the majority gutted the central enforcement provision of the law, claiming that Congress relied on old data to determine which states required preclearance of changes in voting procedures and that "current conditions" might not justify the burden placed on those states to prove that their voting laws and practices don't suppress the minority vote.

The evisceration of the Voting Rights Act based on "current conditions" is an absurdity. The Republican Party's efforts to repress minority voting through voter ID laws, redistricting, changing polling places and hours etc., indicate that "current conditions" are as miserable as ever. (The Roberts court should similarly consider "current conditions" of the 310 million handguns and more than 3 million military-style assault weapons in circulation the next time it contemplates the Second Amendment.)

Although not explicitly stated, the affirmative action decision was also based on the court's view that "current conditions" no longer support the need for affirmative action in college admissions. The court's 7-1 ruling in Fisher v. University of Texas at Austin remanded the matter to the 5th Circuit Court of Appeals, instructing it to apply stricter scrutiny to the case. The court affirmed diversity as a valid educational aim but said race may be used as a criterion only if it is clear that no other method can achieve diversity goals. Critics and supporters of affirmative action alike claimed victory, but with about the same level of enthusiasm as greets a draw in sports.

A slew of lawsuits is likely to result. The court has essentially invited any number of white folks or their agents to cry foul if they are denied admission when an ostensibly less-qualified person of color is admitted. I needn't elaborate on the legacy admissions that disproportionately benefit privileged white kids or the wink-and-nod practices that open doors to wealthy children in every aspect of life.

The widely held conservative view is that affirmative action was appropriately strong medicine to address the effects of slavery and Jim Crow, but no longer necessary. But the claim that we live in a post-racial society is unsupportable. The effects of racism are arguably more powerful today than decades ago.

In The New Jim Crow, Mass Incarceration in the Age of Colorblindness, Michelle Alexander makes a compelling case for the 21st century version of structural racism. Blacks are 40 percent of prison inmates, while only 12 percent of the population. About 12 percent of black men between 25 and 29 are in prison. Only 2 percent of similar age white men are. The unemployment rate for black Americans is nearly double that of white Americans. The ratio is as high as 4:1 in some states. These are the "current conditions."

Marian Wright Edelman, president of the Children's Defense Fund, has written extensively about the steady resegregation of America's public schools, beginning in 1988. Resegregation is a direct result of economic inequality, the stark division of communities by race, and the decline (often as a result of judicial fiat) of busing, magnet schools and other programs that once attempted to unite America's children across racial lines. In 2013, circumstances in most urban school districts are more dismal than the conditions before the 1954 Brown v. Board of Education decision that rejected the notion of "separate but equal."

The dominant note in the debate now is that "class" should replace race as the inequity requiring remediation. This is a classic category error. The injustice of class is a result of economic policy that concentrates wealth among the few at the expense of the many, and the cure is economic justice, not affirmative action. The question is whether race continues to confer a substantial disadvantage, independent of the overlapping effects of class. The unambiguous answer is, "Yes, and it's getting worse." In 1954, Brown v. Board of Education gave society the moral and legal authority to address racism in education. In 1965 the Voting Rights Act addressed the racist policies and practices that denied black Americans their most fundamental right.

Today the stench of racism remains powerful, but a highly political Supreme Court has dulled the tools of justice. That is the sad current condition.

This first appeared in the Valley News