The Supreme Court leaves civil rights behind

Opponents of affirmative action succeed by twisting reality inside out and backwards.

U.S. Supreme Court justices (clockwise from top left): Samuel Alito, Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor, Clarence Thomas, Antonin Scalia, John Roberts, John Paul Stevens and Anthony Kennedy

WITH ITS ruling to uphold Michigan's ban on affirmative action policies in admissions at state universities, the U.S. Supreme Court has taken a step backward into the past--back before the civil rights movement convinced the nation that racial equality was something worth fighting for.

The 6-2 decision issued on April 22 in Schuette v. Coalition to Defend Affirmative Action backs a 2006 referendum--known as Proposal 2, or the "Michigan Civil Rights Initiative"--that amended the state constitution to prohibit discrimination and "preferential treatment" in public education, government contracting and public employment on the basis of race, ethnicity, sex and national origin.

Opponents of affirmative action had launched the referendum in response to a 2003 setback for their side--the high court decision in Grutter v. Bollinger, in which the justices ruled that the University of Michigan Law School could consider race during the admissions process, in the interest of diversity. In a non-presidential election year, the referendum passed easily.

Court decisions over the constitutionality of Proposal 2 went back and forth, but in 2011, and again in 2012, the 6th U.S. Circuit Court of Appeals--one step down from the Supreme Court--overturned the referendum's affirmative action ban, on the grounds that it violated equal protection under the law.

Then the Supreme Court--with a more fanatical conservative majority in place--got into the act. Only Justices Ruth Bader Ginsberg and Sonia Sotomayor dissented.

The justices in the majority rationalized their decision against affirmative action with the argument that the courts couldn't overrule the "democratic power" of Michigan's voters. "This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it," wrote Justice Anthony Kennedy.

But this is a sleight of hand. The referendum passed with as strong a majority as it did because it was deceptively worded and misnamed--and it had the advantage of going against an already much maligned policy. And besides, the conservative justices don't let popular opinion get in the way when it runs against their ideological preferences.

Actually, the decision against affirmative action is very much part of the right-wing agenda of dismantling programs inherited from the 1960s and '70s, when mass social struggles like the civil rights movement were at their height. The talk about voters' will is a cover.

In order to throw out affirmative action, the justices had to ignore its effectiveness in leveling the playing field--or at least tilting it a little closer toward level--in education and jobs.

Affirmative action hasn't outlived its usefulness. On the contrary, we need more affirmative action, not less--to counteract the grip of racism that remains tight on U.S. society today, half a century after the civil rights movement.

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THE STATISTICS prove why affirmative action is worth fighting for.

In 2006, the year that voters passed Prop 2, Black students made up about 7 percent of undergraduates at the University of Michigan in Ann Arbor. That number has fallen to 4.6 percent. In 2006, the law school enrolled 25 Black first-year students; in 2008, just 14.

In a state where Blacks are some 14 percent of the population, 7 percent is grossly insufficient representation in the first place--but without affirmative action programs to open up the university system to African Americans, the 2006 numbers look good by comparison to today.

"This country is becoming a majority minority country," George Washington, a civil rights attorney who first filed litigation against Proposal 2 on behalf of the Coalition to Defend Affirmative Action By Any Means Necessary, told Mlive. "At the same time...you've got elite schools becoming more white. If you cut affirmative action, that trend is going to increase."

Today, seven states--Michigan, Arizona, California, Florida, Nebraska, Oklahoma and Washington--have some kind of ban on affirmative action in place. Now, with the Supreme Court's most recent decision, other states will be encouraged to do the same.

Anti-affirmative action initiatives like Proposal 2 are couched in language about ending "preferential treatment," but they are really about perpetuating such treatment--for the people who have all the advantages, historically and in the here and now, in gaining admission into college or getting a good job.

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AT THE heart of the anti-affirmative action campaign are conservatives who have made a career out of trying to turn back the clock on civil rights.

One of Proposition 2's main backers was Ward Connerly, who has been part of the campaign to eviscerate affirmative action since California's Proposition 209 in 1996. A Black former regent of the University of California system who heads the deceptively named American Civil Rights Institute, Connerly says it's time we start living in a truly "colorblind" society, and that affirmative action programs only get in the way of real racial equality.

Witness Connerly's backward, inside-out, upside-down logic when he challenges what he calls "preferences":

People should not have to resort to ballot initiatives to answer the question of whether the government should classify us and treat us differently based on skin color or ethnic background...The next step is to try to get people to realize that this is the law of the land, and they should accept it.

In other words, recognizing that racism against African Americans and other people of color exists is...racist.

Connerly's twisted ideas are shared by some of the most powerful people in the country, including justices of the Supreme Court. In another case concerning admissions policies at the University of Texas, Justice Clarence Thomas compared affirmative action to--yes, you're reading this right--segregation and slavery:

The University's professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.

The same upside-down logic was used in the Michigan case. "We are saying that it is fundamentally wrong to treat people differently on the basis of your race or the color of your skin," said Michigan Attorney General Bill Schuette in defending Proposal 2.

The attacks on affirmative action go hand in hand with other efforts to overturn or curb laws and policies put in place to try to address systematic racist inequality in U.S. institutions.

For example, the Voting Rights Act of 1965--one of the main achievements of the civil rights movement--was on the legal chopping block last year when the Supreme Court struck down provisions designed to protect the rights of Black voters because they were supposedly out of date. This in a country where, a little over a decade ago, George W. Bush stole his way into the White House, thanks to the disenfranchisement of African Americans in Florida.

Affirmative action opponents claim they want to live in a "post-racial" society. But what they really want is a "pre-civil rights" society, before the hard-fought struggles for equality achieved a greater measure of democracy and freedom.