Supreme Court Outlaws Affirmative Action

Malik Miah

Members of NAACP march to the Michigan state capitol in defense of affirmative action. https://jimwestphoto.com

to oppose Proposal 2 on the November ballot. The so-called Michigan Civil Rights Initiative would ban affirmative action by state agencies and public universities.
So wrote Justice Ketanji Brown Jackson in her dissenting opinion in Students for Fair Admissions v. University of North Carolina, one of two cases decided June 29 that centered on affirmative action. Brown is the first African American woman on the court.

The hard conservative super majority on the Supreme Court, 6-3, falsely ruled that the United States is and has always been a “color blind” country. Race does not matter according to SCOTUS. While expected, the decision is a major blow to Black freedom and undermines equality for all.

Roberts’ Twisted Interpretation

Chief Justice John Roberts said the Founders (all white men) rejected race as a foundation of the newly independent country.

Of course, that was false. Like the British colonizers, they did not recognize nonwhites as citizens. Indigenous people were “savages” and slaves were property and less than human.

The ideology of white superiority is inherent in the Constitution and the three branches of government. One example is how Southern slaveholders received special political and economic influence in the Constitution because they were given extra representation for owning slaves.

Roberts and the majority know this history. Their decision was not based on new information or analysis of the Constitution. It was a political decision.

However, the majority needs cover. It had to seek Constitutional justification. Roberts referenced the 14th Amendment’s “equal protection” clause. (Clarence Thomas in a 58-page concurring brief gave a hard right “I am Black man from the South” rejection of affirmative action and civil rights advances.)

In the 14th Amendment there are three key clauses: The Citizenship Clause granted freed slaves full citizenship. The Due Process Clause granted fairness to former slaves and all citizens; and the Equal Protection Clause extended the protection which whites had enjoyed but Black people did not. The latter was especially important in former slave states.

The reality of race was the underlying basis of the Reconstruction Amendments. The 13th, 14th and 15th amendments seek to overcome race, racism and subjugation of Black people. All were written by abolitionists in Congress.

Those three amendments codified the defeat of the slaveholders and signified a Second American Revolution. The original Constitution was a negative for Black people.

The Supreme Court majority argument is made up. There is no mention of building a “color blind” society in the founding documents. The bedrock of the capitalist system has always been institutionalized racial discrimination.

Dueling Black Justices

There was an extraordinary exchange between the two Black Justices — Clarence Thomas, the second Black Justice to serve, and Ketanji Brown, the first Black woman.

In sharp rebuttals, according to the June 29 New York Times, Bloomberg and other media sites:

“Justices Clarence Thomas and Ketanji Brown Jackson harshly criticized each other’s perspectives, reflecting the deep divisions and passions Americans have over race and affirmative action. Even as they appeared to agree over the policy’s aim — remedying the longstanding discrimination and segregation of African Americans — they drew opposite conclusions on how and what to do.

“Both Thomas, now the longest serving Justice and Jackson, its newest member, were raised by Black families in the Jim Crow segregated South. Thomas attended Yale and Brown went to Harvard. Both were qualified but the policy of affirmative action got them admitted.

“In his concurring majority opinion, Justice Thomas called out Justice Jackson by name in a lengthy seven-page critique, singling out her views on race and leveling broader criticisms of liberal support for affirmative action.”

“As she sees things,” Thomas wrote, “we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of Black Americans still determining our lives today.”

In her dissent, Justice Jackson pointedly denounced his remarks as a “prolonged attack” that responded “to a dissent I did not write in order to assail an admissions program that is not the one U.N.C. [University of North Carolina] has crafted.”

In his lengthy opinion Thomas repeated a recurring theme in his writings and speeches over the years: his anger at Black people being portrayed as victims. (Some African Americans refer to this as Thomas’s own self-loathing.)

Justice Jackson pushed back sharply accusing Thomas of imagining her viewpoint and misunderstanding the underpinnings of her support for the policy of affirmative action.

“Gulf-sized race-based gaps exist with respect to the health, wealth and well-being of American citizens” but although those disparities emerged years ago, Brown added, “ignoring that history would be foolish because those inequities have “indisputably been passed down to the present day through the generations.”

“Despite these barriers,” she added, “Black people persisted.”

The Historical Lesson

Of course, the rollback of affirmative action programs at colleges began years ago. California passed a Proposition 1996, the first state to do so. It made it illegal to use race- and gender-conscious hiring and admissions in public institutions. The first year after it was adopted, Black and Latino enrollment in the top universities like UCLA and UC Berkeley dropped by 40 percent and never recovered.

While the Court’s ruling is narrowly aimed at college admissions, many employers are reviewing their “diversity” programs. The reality, however, is that the changing demographics here and abroad require a more educated and diverse workplace including in top management positions to compete in the global market.

The main historical lesson for supporters of equality of opportunities and results means going back to the streets. It took a revolution, the Civil War, to make former slaves citizens and weaken white supremacy.

It took another 100 years of uprisings and resistance to bring the fundamental change that put an end to Jim Crow. And part of that Civil Rights agenda was affirmative action. In 1965 President Johnson signed the Executive Order that implemented it.

But the far right, led by Ronald Reagan, opposed those changes. He called affirmative action “reverse discrimination” against whites.

The NAACP, founded in 1909, responded after the Students for Fair Admissions v. University of North Carolina decision. NAACP President and CEO Derrick Johnson wrote in a statement:

“Today the Supreme Court has bowed to the personally held beliefs of an extremist minority. We will not allow hate-inspired people in power to turn back the clock and undermine our hard-won victories. The tricks of America’s dark past will not be tolerated. Let me be clear — affirmative action exists because we cannot rely on colleges, universities, and employers to enact admissions and hiring practices that embrace diversity, equity and inclusion. Race plays an undeniable role in shaping the identities of and quality of life for Black Americans. In a society still scarred by the wounds of racial disparities, the Supreme Court has displayed a willful ignorance of our reality. The NAACP will not be deterred nor silenced in our fight to hold leaders and institutions accountable for their role in embracing diversity no matter what.”

The challenge is to follow in the footsteps of previous generations — starting with the slave revolts and continuing through the mass Civil Rights struggles of the 20th century and today’s Black Lives Matter movement. The battle must be engaged, and it will.

September-October 2023, ATC 226