As much as it pains hard-right conservatives, today’s Supreme Court ruling affirming the University of Texas’ race-conscious admissions program means affirmative action’s not going anywhere – at least not anytime soon.
The court issued a 4-3 decision that said the University of Texas at Austin’s affirmative action program did not violate the constitutional rights of Abigail Fisher, a white student who felt she’d been unfairly passed over for admission.
It marked the court’s second ruling in three years on the case. The first time, the justices affirmed lower court rulings in the university’s favor, but said schools can’t consider race in admissions processes unless such processes can withstand “strict scrutiny” by the courts. The justices also told the university it must show it had exhausted all available race-neutral alternatives before turning to affirmative action.
I, like many proponents of affirmative action, feared the court’s conservative wing was setting this stricter standard in preparation to strike down race-conscious admissions programs. With conservative hero Antonin Scalia’s seat vacant and Obama appointee Elena Kagan conflicted out of the case, court-watchers counted four likely votes against affirmative action and three for it.
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Instead, Reagan appointee Anthony Kennedy swung over to join the liberal wing. Writing for the majority, he said that while schools can’t justify race-based measures solely by “asserting an interest in the educational benefits of diversity writ large,” such measures can pass constitutional muster if backed by “concrete and precise goals” and a “reasoned, principled explanation” for charting such a course.
In other words, race can be used – carefully.
That strikes me as fair. Minorities, despite many setbacks, are advancing in this society, compared to previous generations. The law should evolve to recognize that. But we needn’t agree with far-right conservatives who want to jump ahead of that social curve and prematurely declare every aspect of American life 100 percent racism-resistant.
Sure, everything isn’t necessarily about race anymore. But a lot of things still are. Donald Trump, for one, sure wasn’t pretending to be color-blind when he lashed out at the “Mexican” judge whose heritage supposedly renders him incapable of a fair ruling in the Trump University lawsuit. For all his many faults, The Donald is at least honest enough to spit his racialized thought-phlegm right out in public, disgusting though it may be to most of us.
Most of us couch it in coded language, sometimes not even with full awareness of what we’re doing. Take the term color-blind, for instance. It’s one of my pet peeves. Some white folks use it in the honestly mistaken belief that they’re following Martin Luther King Jr.’s admonition to judge black people not by the color of their skin, but by the content of their character.
Right, don’t judge me by the brownness of my skin. But there’s no need to declare that you can’t even see it. King wasn’t implying that there was something wrong with brown skin; he was saying that, in his era, it was wrongly equated with inferiority.
If we’re all safely past that ugly history, you needn’t avert your eyes from the brownness of my skin, either linguistically or literally. God gave me this skin and apparently likes it just fine. I like it too. Should be fine by you, too – unless you implicitly find it a point of embarrassment, a deficit of some sort that I must rise above.
And if that’s what you think, well, I certainly don’t want your color-blind eyes judging my job or college application.
In a society where that tacit presumption of inferiority remains stubbornly present, we still need carefully applied race-conscious remedies.
The Supreme Court, at least for now, and at least for this ruling, got it right.