In its decision Monday on affirmative action, the Supreme Court punted.
It reviewed the University of Texas affirmative action program
in which race is admittedly a factor of a factor of a
factor in admission, one of many factors used with a university
committed to the educational benefits of a diverse student body
and said the lower court had to give it even stricter scrutiny. Or in
essence, take another, harsher look and come back next year.
In making the decision, the court once more revealed how out of touch
it is with reality. The 14th Amendment to the Constitution was passed
to provide equal protection of the laws to African Americans emerging
from slavery. But 150 years of slavery was followed by 100 years of
apartheid, as the courts and the Congress perverted the purpose of the
Reconstruction Amendments (13-15).
Finally, under Chief Justice Earl Warren, the court, driven in part by
the civil rights movement and in part by Cold War concerns that
legalized discrimination might discredit the U.S. in the nations
emerging from colonialism, ruled that segregation was unconstitutional
and accepted affirmative action to bring equality of opportunity to all
Americans. And that revolution in civil rights for blacks led directly
to the women movement, the gay liberation movement, and the
Latino movement.
Now, conservatives on the court want to distort the Constitution once
more, and rule that affirmative action based on race is
unconstitutional, even when it is undertaken to provide opportunity to
those who were locked out. In essence, the court is saying that equal
opportunity has been achieved, and that considering race as a factor is
thus inherently discriminatory.
But African Americans still make far less than whites do.
African-American unemployment is twice as high. The wealth gap has
widened, not closed. African-American children still enter a world
stacked against them. Too many are born to poverty, raised on mean
streets. They go to crowded and underequipped schools, starved by the
savage inequality of funding. They are targeted by banks
for higher interest rates, and the most exotic mortgages. They are more
likely to be arrested for nonviolent crimes like those involving drugs,
more likely to be jailed if arrested, more likely to serve time if
tried. In red states across the country, conservatives pushed various
measures to limit their right to vote. The pattern of continuing
discrimination is pervasive and inescapable for all who care to look.
That’s why Justice Ruth Ginsberg dissented from the opinion,
arguing that more scrutiny is not needed. After a yearlong review, the
university, she writes, reached a reasonable, good faith
judgment that supposedly race-neutral initiatives were insufficient to
achieve the educational benefits of student-body diversity. The
purpose is constitutional; the means appropriate. Nothing else should
be required.
In this case, in the Voting Rights case likely to be announced this
week and in future cases, the court faces a choice. It can ignore the
reality of race in this country, enforce an ideological position and
trample the basic constitutional mandate of equal rights under the law.
Or it can take a clear look at reality and sustain the original intent
and clear mandate of the Constitution, particularly its 14th and 15th
Amendments. The rights of African Americans; but also the rights
of women, of the GLBT movement, of Latinos; will depend to no
small degree on how the court rules. Keep up with Rev. Jackson and
the work of the Rainbow PUSH Coalition at www.rainbowpush.org.
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