Justice Sotomayor Gets It Right on Race

“The greatest trick the devil ever pulled was convincing the world that he didn’t exist.”

Strangely enough, one of my favorite movie lines seems oddly appropriate when considering this week’s Supreme Court decision in Schuette v. Coalition to Defend Affirmative Action. In a 6-2 vote, the SCOTUS upheld the state of Michigan’s voter imposed ban on the practice of considering race as part of college application processes.

I won’t bother to give a history lesson on Affirmative Action and its origins, nor will I discuss the substance of the policy itself. For our purposes, the reader need only know that Affirmative Action was among the vehicles conceived by legislators to help right the wrongs of slavery and level the playing field for African-Americans by giving additional consideration in application processes to race where applicants were found to have comparable qualifications to their white counterparts. The idea was originally that whites enjoyed a significant head start in the proverbial race toward success and that this would help deserving blacks catch up after we (unknowingly and unwittingly) “spotted” whites  a 400 yr. head start. Since then the discussion has evolved, particularly in higher education, to include buzz words and catch phrases like “interest in diversity” and other such verbiage which generally suggests that entities should favor the practice of inclusion across the board without it having to be the law, simply because it’s the right thing to do.

As it relates to this case, the reader need understand only that before being in front of the SCOTUS, a Federal Appeals court threw out a voter-imposed ban in the state of Michigan on the use of race based consideration(s) as part of admission practices for its public institutions. The Supreme Court reversed that decision and held that voters had the right to make that decision.

So what does the Schuette decision do? Like many of the recent decisions of this court (the most notable exception being the general upholding of the ACA), it empowers the states to make certain decisions as it sees fit. This is likely to catapult the issue of Affirmative Action to the forefront of many states’ political agendas and will prove to be a line in the sand for public universities everywhere. At worst, it could be the blueprint for how to go about dismantling Affirmative Action locally. Expect to see ballot initiatives regarding Affirmative Action coming to an election/voting booth near you, complete with campaigns for and against by interest groups like Coalition to Defend Affirmative Action, the Respondents in this case.

The reason I won’t bother much with the details or perceived nuances of Affirmative Action (it is actually quite a simple concept to understand) is because, at its core, the decision of the high court in Schuette, while unfortunate, has very little to do with Affirmative Action itself.  In this case, Affirmative Action is simply the lens through which we must again force ourselves to examine and discuss the issue of race in America. The majority’s is a decision that reflects a composite which is either unwilling or unable to grasp fully the ever-present realities of what race means in 2014. Quite simply, it attempts to reflect post-racial attitudes in a society that is far from post-racial. The reasons for this are all speculative at best, with one of the stronger theories being that as racial inequity is not and will likely never be the first person experience of Chief Justice Roberts, Justice Scalia, et. al (I’m not even touching you, “Brotha” Clarence) it is that much more difficult for many of them to understand the inherent value and pressing need for continued procedural safeguards against racial exclusion.  

This is that trick that I referred to. The dangerous and seductive notion that racism, bias (both intentional and unintentional), micro aggressions, and the like are all overblown figments of the imagination in 2014; that the law does not need to mandate diversity because we have evolved to a space where the momentum of progress will carry things beyond where the letter of the law can take it, therefore citizens in states have the right to say no to Affirmative Action if they choose.

It’s like arguing with a significant other who wants to take precautions or is distrustful after having been wronged. The significant other doesn’t feel the need to keep having to take measures to atone for what they did, and essentially argues in favor of the need to “just move on” and “stop discussing old shit.” That is what Chief Justice Roberts has repeatedly articulated as his mindset on issues regarding race-based considerations. Essentially, the longer we continue to discuss race, the longer race will be an issue.

Oh, I see. Don’t talk about it. Then it will just go away. How simple…and completely disproved by history.

And then we are lead to the 58-page of a blistering gem of a dissent written by Justice Sotomayor and Justice Ruth Bader Ginsburg. Both of them had the courage to speak their truths about the issues of race and importance of declaring that the law should still ensure equal opportunity through the promotion (and safeguarding) of diversity. Sotomayor drew upon her experiences as a woman of Latina dissent who achieved despite humble beginnings. In a few instances, she declared “Race matters” before going further to detail the different individuals for whom race still matters in 2014. This should serve as not only a rallying cry to remember when these voter initiatives start inevitably popping up everywhere. It should also be a wake up call to our friends who may have their “racial blinders” on too tight. It is as almost as unforgivable and equally irresponsible to claim not to “see” race in 2014 as it is to see it and succumb to negative influences because of it.

See Also

If there is anything we’ve learned Schuette, it’s that regardless of whatever tricks folk may pull race does matter. And, it has never ceased to matter.

Charles F. Coleman Jr. is a former Kings County (Brooklyn), NY prosecutor and presently functions as a federal trial attorney specializing in civil rights and employment discrimination. Follow him on Twitter @CFColemanJr.





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