United States: Supreme Court outlaws affirmative action

July 7, 2023
US civil_rights_march_on_washington
Black people and their supporters have to go back to mass action in the streets to bring about change. Image: Wikipedia

“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.”
— United States Supreme Court Justice Ketanji Brown Jackson, in her dissenting opinion in Students for Fair Admissions v University of North Carolina.

In a ruling by the hard-right super majority on the US Supreme Court on June 29, six out of nine justices falsely asserted that the United States is and has always been a “colour-blind” country.

While expected, the decision is a major blow to Black freedom and undermines equality for all.

The ruling only applies to public and private colleges and universities, but allows affirmative action in military academies — which is illogical.

It seems the Court recognises the need to train Black military officers to rule over enlisted men and women — many of whom are Black or other people of colour — to avoid eroding morale, discouraging people of colour from enlisting and giving the military a negative image internationally.

Twisted interpretation

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

This is false. Like the British colonisers, the writers of the US Constitution did not recognise non-whites as citizens. Indigenous people were “savages” and slaves were property and less than human.

The ideology of white superiority was inherent in the Constitution and the three branches of government. The Southern slaveholders received special political and economic influence in the Constitution under “states’ rights” and were given extra representation for owning slaves.

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

However, the majority needs cover. It had to seek a Constitutional justification. Roberts referenced the 14th Amendment’s “equal protection” clause in the decision.

Justice Clarence Thomas, in a 58-page concurring brief, gave a hard-right rejection of affirmative action and civil rights advances, claiming “I am a Black man from the South” as his authority.

The three post-Civil War (Reconstruction) Amendments — the 13th, 14th and 15th — stem from race, racism and subjugation of Black people. They were written by abolitionists in Congress.

The amendments codified the defeat of the slaveholders and signified a Second American Revolution. The original Constitution, without these changes, codified slavery and the complete oppression of Black people.

There are three key clauses in the 14th Amendment. The Citizenship Clause granted freed slaves full citizenship. The abolitionists wanted to include that all citizens had the right to vote, but they were thwarted. To this day there is no right to vote for all citizens in the US. Each state decides who gets to vote and who doesn’t.

The Due Process Clause granted fairness to former slaves and all citizens.

The Equal Protection Clause mandated that individuals in similar situations be treated equally by the law. It was especially important in former slave states.

The Supreme Court majority argument is made up. There is no mention of building a “colour blind” society in the founding documents.

The bedrock of the capitalist system in the US has always been institutionalised racial discrimination, under various forms — slavery, segregation, and its forms today.

Black Justices duel

Jackson is the newest member and the first Black woman appointed to the Supreme Court. Thomas is now the longest serving Supreme Court Justice, with 32 years on the bench. According to the June 29 New York Times, they “harshly criticised 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.”

Thomas and Jackson were each raised in the Jim Crow segregated South. Thomas attended Yale and Jackson went to Harvard. Both were qualified but the policy of affirmative action got them admitted to these elite universities.

Thomas appears to say that affirmative action was fine in his case, except for the judgement from whites that he was not truly qualified to enter Yale, and became a powerful opponent of affirmative action to remove the stigma on Black people entering top schools.

In his concurring majority opinion, Thomas called out Jackson by name in a lengthy seven-page critique, singling out her supposed views on race and levelling 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, 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 UNC [University of North Carolina] has crafted.”

As the NYT noted, “Jackson agreed that the pair agreed on the history or facts about racial disparities in the United States. They had simply reached totally different conclusions.”

“Justice Thomas,” Jackson continued, “is somehow persuaded that these realities have no bearing on a fair assessment of individual achievement”, adding that he “ignites too many more straw men to list, or fully extinguish.”

Thomas responded, according to the NYT, “by castigating Justice Jackson’s backing of affirmative action, describing it as a panacea where society would ‘unquestioningly accede to the view of elite experts and reallocate society’s riches by racial means as necessary to ‘even the playing field’”.

In his lengthy concurring 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.)

Thomas wrote that Jackson was drawing on “race-based stereotypes, when, in reality, all racial groups are heterogeneous, and Blacks are no exception — encompassing Northerners and Southerners, rich and poor, and recent immigrants and descendants of slaves.”

“By articulating her black-and-white world (literally),” he added, “Justice Jackson ignored the experiences of other groups, including Chinese immigrants, descendants of Holocaust survivors and those who came to the United States from Ireland, fleeing famine.”

Jackson pushed back, sharply accusing Thomas of falsifying 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,” she wrote. “Although those disparities emerged years ago, 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 rollback of affirmative action programs at colleges began years ago. California passed a resolution in 2009 that denied using affirmative action by race and gender in deciding admissions in the state’s public university system — the first state to do so.

The first year after it was adopted, Black and Latino enrolment in the top universities, such as the University of California Los Angeles (UCLA) and UC-Berkeley, dropped by 40% and have not recovered.

What next?

It is likely that employers will follow the lead of the court’s ruling, despite it being narrowly aimed at college admissions. Already, many employers are reviewing their “diversity” programs.

The main lesson of history for supporters of equality of opportunities is that Black people and their supporters have to go back to mass action in the streets to bring about change.

It took a revolution — the Civil War — to make former slaves citizens and weaken white supremacy for a decade, before white resistance eliminated most of the freedoms won for Black people.

It took another 100 years of uprisings and resistance to bring fundamental change that culminated in the 1960s end to Jim Crow. President Lyndon Johnson signed an Executive Order for affirmative action in 1965.

The far right — led by former president Ronald Reagan in the 1980s — opposed those changes. Reagan called affirmative action “reverse discrimination” against whites.

When the Supreme Court decision was announced, Derrick Johnson, President and CEO of the National Association for the Advancement of Colored People (NAACP), founded in 1909, said: “We will not allow hate-inspired people in power to turn back the clock and undermine our hard-won victories.

“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 — from the slave revolts to the mass civil rights struggles of the 20th century. The battle must be engaged, and it will.

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