Affirmative Action and the Supreme Court Blues

Ibram KendiIbram KendiWe often look back at American racial history and shake our heads in wonder. We degrade previous generations for their collusion or apathy regarding the forces of racism. How could so many people really believe African Americans were better off as slaves, or slavery was a positive good? How could so many people really believe separate could actually be equal? Why could they not look past the beautiful mask of rhetoric to see the ugly, nakedness of racism?

In the Brown v. Board of Education decision in 1954, the U.S. Supreme Court saw through the false rhetoric of separate but equal that racists used to legally discriminate for more than 50 years. The Court finally realized that the mantra—though seemingly egalitarian—had in practice racially discriminated against African Americans. The Court did not care whether the policy spoke of racial equality. The Court realized its effect was undeniably racial inequality.

On Tuesday, on the eve of the 60 year anniversary of the historic Brown decision, the U.S. Supreme Court heard Schuette v. Coalition to Defend Affirmative Action, which if decided like the Brown case, could have far-reaching effects on racial justice in America. The Court could finally rule in favor of what anti-racist scholars of race have been saying for ages—if a law or policy breeds racial inequality, then it is racist and should be outlawed. The language does not matter. The effect is everything.

The Brown decision and other legal and extralegal gains of the black freedom movement transformed America’s racial atmosphere. No longer could racial inequality and White privilege be sustained through race batting rhetoric, and laws and policies containing separatist or racial language.

Smartly, American racists changed strategy, and began their assault anew on people of color through their most effective weapons to date: superficially race-neutral laws and measures, and wrapping their rhetoric, organization names, and policies in the name of racial equality, in the name of civil rights. They adroitly redefined racists and racism as anyone and anything that does not promote race-neutrality, colorblindness, and equality.

I am a racist, these definers would claim, since I am simply writing about race. We need to eject race from our national vocabulary, they say, and those who keep talking about this race stuff are the problem, are the chief progenitors of racism. Re-defining racism this way, forcing us to eliminate all race talk, all race-specific programming, became the new, post-Sixties strategy of racists. And like our ancestors, we have not been able to look past the beautiful mask of egalitarian rhetoric to see the ugly, nakedness of racism.

Criminals who strive to stay out of court go out of their way to disguise their criminality. But finally these criminal racists, after stealing away so many gains from the Sixties, have been hauled before the highest court in the land.

Lawyers for Michigan Attorney General Bill Schuette attempted to convince the Court that there is nothing wrong with the Michigan Civil Rights Initiative, a 2006 constitutional amendment banning the use of “racial preferences” in public university admissions. The measure states that public universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.”

California, Florida, Washington, Arizona, Nebraska, Oklahoma, and New Hampshire have similar bans. If the Court rules for Schuette, it could open the floodgates of similar bans across the nation, just as the 1896 Plessy v. Ferguson decision legalizing separate but equal in Louisiana, flooded the South with Jim Crow. African Americans drowned from the rush of grandfather clauses, poll taxes, literary tests and a series of other race-neutral measures.

African American students have been recently drowned out by these so-called race neutral constitutional bans from Michigan to California to New Hampshire. The New Racists wanted to destroy affirmative action and reestablish the status quo—everything benefiting white students through a mind-bogglingly unequal socio-economic environment leading to a devastatingly unequal K-12 system leading to white advantages on the major admissions factors (SAT, GPA, performance on college prep courses).

The New Racists rolled back the racial gains of the 1960s just as their conservative ancestors rolled backed the racial gains of the 1860s. The student bodies of highly selective schools declined from 5.6 percent African American in 1982 to 3.4 percent African American in 2004. Despite the massive immigration of Latinos, their percentage barely inched up from 6 percent in 1982 to 6.9 percent in 2004.

In 2011, the University of California—Berkeley, UCLA, and the University of Michigan had the lowest percentage of entering freshman among the nation’s top 29 universities. At the University of Michigan, the percentage of black undergraduates dropped from 7 percent in 2006 to 4.7 percent in 2012: Latinos from 4.9 percent to 4.3 percent.

The Coalition to Defend Affirmative Action presented to the Court these figures and many more to prove that Michigan’s constitutional ban has enhanced racial inequality. As Mark Rosenbaum of the American Civil Liberties Union told USA Today, “Instead of healing the nation’s wounds, it’s actually opening those wounds.”

It is truly amazing that Black, Latino, and Native American students are grossly under-represented in higher education and their representatives, defenders of affirmative action trying to increase their representation to create some measure of parity, are being called racist and discriminatory. But that has been the winning strategy of the New Racists the last 40 years.

One day, we will be those people we mock today. Our descendants will look back at us, scratch their heads, and wonder how we could really believe affirmative action was the problem? How could the U.S. Supreme Court eliminate the programs reducing racial inequality in the name of racial equality?

The future will tease us, satirize us incessantly. Did they fix broken legs by putting arms in casts, too? Did they repair class conflict by ignoring class? Did they fix problems in New York by passing measures in Georgia? How did they expect to heal racial inequality without race-specific antidotes?

I can already hear my grandchildren—if I am ever blessed to have any—asking me these questions. And all I will be able to do is what I am doing now—shake my head in wonder, in the blues.

Dr. Ibram X. Kendi (formerly Ibram H. Rogers) is an assistant professor of Africana studies at University at Albany — SUNY. He is the author of The Black Campus Movement: Black Students and the Racial Reconstitution of Higher Education, 1965-1972. Follow on Twitter