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    opinion | Julianne Hing

    The Supreme Court gives license to discriminate

    If we as a nation are the stories we tell about ourselves, the Supreme Court is the political body we’ve tasked with reconciling the many conflicting strains of our collective narrative.

    Justices this session are expected to write another scene in the nation’s ever-evolving drama over racial issues when they rule on Schuette v. Coalition to Defend Affirmative Action, the second affirmative action case the court has considered in as many years. While there’s considerable disagreement on and off the court, a plurality of the high court has interpreted race-consciousness as racial discrimination.

    As it turns out, the Supreme Court is a supremely unreliable narrator.


    Schuette concerns the constitutionality of Proposal 2, a state anti-affirmative action ballot initiative Michigan voters passed in 2006. Prior to the new law, an individual could petition the Michigan Board of Regents or the admissions committee of a school to make changes to public universities’ admissions policies. Maybe the petitioner would throw in a visit to the board of trustees, or local lawmakers or even the governor to plead their case. Proposal 2, however, shifted the landscape so that such updates to admissions policies now require a statewide referendum to first repeal Proposal 2, but only for those — presumably students of color — who would advocate for race-conscious admissions policies. Religious minorities, donors, and alumni who wanted to lobby the University of Michigan for special consideration in admissions, for example, could go the usual route of petitioning the Board of Regents, affirmative action proponents argued. This singling out of racial minorities constitutes a violation of the 14th Amendment’s equal protection clause.

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    Michigan Attorney General Bill Schuette, arguing on behalf of the state, has denied that Proposal 2 is a violation of the 14th Amendment because the equal protection clause doesn’t give anyone the right to affirmative action; it only gives people the right not to be discriminated against on the basis of their race.

    The Supreme Court clearly sided with this view when it gutted the Voting Rights Act in Shelby v. Holder last summer, but has been dropping hints about how it feels for years now.

    “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” was Chief Justice John Roberts’s famous line as the court weighed in on high school desegregation in 2006. In his concurring opinion in Fisher v. Texas, Justice Clarence Thomas equated the University of Texas’ justifications for its race-conscious admissions policies with slave owners’ rationalizations for chattel slavery. “The worst forms of racial discrimination in this nation have always been accompanied by straight-faced representations that discrimination helped minorities,” Thomas wrote.

    Since the 1970s, the Supreme Court has held that the equal protection clause only guards against intentional, purposeful discrimination directed at a specific group, thus ignoring the myriad other ways racism manifests itself, namely via deeply embedded institutional inequities and unconscious biases.


    Such willful ignorance is a longstanding tradition among justices. In 1896’s Plessy v. Ferguson, justices assumed separate railroad cars were still equal, despite the fact that for blacks in the Deep South — on and long off the train tracks — life bore no semblance to equal treatment. This legal fiction was enough to buttress the doctrine of “separate but equal,” which was enough to justify segregation and racial subordination.

    The American higher education system remains deeply racially stratified. This is, in part, a testament to the success of the conservative anti-affirmative action movement. Since 1995, 82 percent of new white undergrads have gone to the nation’s 468 most selective colleges, Georgetown University researchers recently found, while 72 percent of new Latino undergrads and 68 percent of new black students have gone to less selective “open-access” two- and four-year colleges. Students of color depend heavily on the for-profit and community college system. Indeed, according to Diverse Education’s 2013 rankings, in the 2011 to 2012 academic year, the nation’s top producer of black baccalaureates was the for-profit, much-maligned University of Phoenix.

    If affirmative action, as imperfect a tool as it is, was meant to rectify past and contemporary inequities, evidence for its enduring demand abounds. Black students and other students of color more often can’t afford fancy test prep to ace their standardized tests. They’re far more likely than their white peers to go to under-resourced schools, which don’t offer robust music or science or AP courses, and are far more likely than white students to be suspended and expelled from school — a disparity the federal government has said can’t be traced to racial differences in kids’ misbehavior alone.

    The 21st-century analog of “separate but equal” may prove to be colorblindness. It’s the legal doctrine for the post-Civil Rights Act, post-Obama, and supposedly post-race era we’re in — any kind of race-conscious intervention can now be construed as discrimination itself.

    “Our social reality is a world full of unconscious bias,” CUNY Law Professor Victor Goode says. “Our legal reality is one where as long as race is never explicitly used, we live in a world of equal opportunity for all.” So long as the court maintains that line, it provides cover for all the other ways racial discrimination manifests in society — and shapes the opportunities of would-be applicants to Michigan’s top public universities.

    Julianne Hing is a reporter and blogger for Colorlines.com.