5th Circuit, Federal Circuit, John Roberts, Minority Issues, Racism, Texas

Fifth Circuit Upholds Affirmative Action, But Is It Begging for SCOTUS Intervention?

Two people from my high school got into the same college I did. We were all in the top 10 of our class, but none of us were in the top 5. One was a white guy who was a brilliant piano player. The other was a white girl who excelled at sports. Then there was me. I had the “does lots of activities” application. You know the type of d-bag kid I’m talking about: debate this, mock trial that, sports, school plays, bands.

Also, I’m black. Do you think that might have had something to do with it? I hope it did, since it seems to me that my race is at least as much of a factor in what I may add to an incoming college class as whether I could play the piano or dominate in field hockey.

Of course, saying race can be a factor in college admissions is controversial. A certain segment of the population gets all bent out of sorts when a “deserving” white student potentially gets “passed over” because a college official gave a person of color “extra points” when making up the entering class of students.

I find these arguments totally irrational. If the top five students from my high school were passed over — three Jews and two Asians (you know, the real victims of affirmative action, if there are any) — then who exactly “took” their spots? Me, or the sports chick? And if an Asian guy “takes” my spot, but I bump down the piano player who didn’t score as well as I did, and the piano player takes the spot of some poor Hispanic kid who has never seen a piano in real life, would everybody say that we all got what we deserved?

Coming up with an effective way to balance all of the relevant factors in college admissions is hard. But when race is involved, people don’t want to deal with “hard,” and they don’t want to hear “complicated.” They want simple rules and a few platitudes they can recite on television. After yesterday’s Fifth Circuit decision upholding affirmative action at the University of Texas, the only question is whether the Supreme Court has the will and intellectual rigor to think through something hard, or whether the majority will want to fall back on truisms and clichés…

The Fifth Circuit paved the way for a potential SCOTUS decision knocking down affirmative action — in a holding that upholds affirmative action.

The Fifth Circuit prohibited the University of Texas from using race as a factor in admissions back in 1996. In 2003, however, the Supreme Court decided Grutter v. Bollinger, upholding the University of Michigan’s use of race in admissions. On Tuesday, in Fisher v. University of Texas (PDF), the Fifth Circuit held that UT was well within the bounds outlined in Grutter when looking at race. You can read the WSJ Law Blog’s report on the Fifth Circuit’s opinion here, and the report from the Austin-American Statesman here.

You can’t call today’s ruling a “victory” for affirmative action, at least not yet. The plaintiffs plan to appeal, and the concurrence in Fisher should give the plaintiffs all the ammunition they need when appealing to SCOTUS. Mike Sacks at First One @ One First pulls out the pertinent bits from today’s opinion:

The Fisher decision notably includes Judge Emilio M. Garza‘s 30 page anti-Grutter broadside, more politely labeled as a “special concurrence.” Judge Garza, a Reagan appointee to the district court, a George H.W. Bush appointee to the Fifth Circuit, and a runner-up to Justice Clarence Thomas for Justice Thurgood Marshall’s seat on the Supreme Court in 1991, apparently wrote his special concurrence specifically for the consumption of the current Court’s conservative bloc–including Justice Anthony Kennedy, who dissented in Grutter and concurred in Parents Involved…

Ultimately, Garza cites Kennedy five times despite Garza’s own more hardline opposition to affirmative action, which he spells out in conclusion:

“My disagreement with Grutter is more fundamental, however. Grutter’s failing, in my view, is not only that it approved an affirmative action plan incapable of strict scrutiny, but more importantly, that it approved the use of race in university admissions as a compelling state interest at all. […]

Yesterday’s racial discrimination was based on racial preference; today’s racial preference results in racial discrimination. Changing the color of the group discriminated against simply inverts, but does address, the fundamental problem: the Constitution prohibits all forms of government-sponsored racial discrimination. Grutter puts the Supreme Court’s imprimatur on such ruinous behavior and ensures that race will continue to be a divisive facet of American life for at least the next two generations. Like the plaintiffs and countless other college applicants denied admission based, in part, on government-sponsored racial discrimination, I await the Court’s return to constitutional first principles.”

This sentiment echos the views of Chief Justice John Roberts, who famously bended his impressive intellect into an even more droll oversimplification of the issue when he wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

I wish they’d cut the crap. The Constitution has proven itself to be woefully inadequate at stopping racial discrimination of any kind. It didn’t stop slavery, it didn’t stop Jim Crow, it didn’t stop internment of Japanese citizens during WWII. And according to some, it still doesn’t prevent racial profiling, it doesn’t prevent mandatory minimums, and some people don’t even think it prevents the state from having a “preference” towards an all-white firefighting force. There’s probably a brother on a farm down in Georgia who is still waiting for the Constitution to come free his ass. The Thirteenth Amendment didn’t free a soul; William Tecumseh Sherman did that.

The way to stop discrimination on the basis of race is to get people to stop being racist. But there’s no piece of paper that can change what is in a man’s heart. Does Chief Justice Roberts have a plan for changing the minds of all the racists in this country? No? Then let’s stop masturbating to what the Constitution can stop or prohibit, and instead come back to the real world, where race impacts every aspect of our polity.

Now, most days I’m quite thankful to have been born a black man. But every now and again, I do envy some white people insofar as some of them are able to waft through this world oblivious to the role that race plays in our society. Sometimes I think I’d like the blissful ignorance that comes from thinking racists announce themselves with white hoods and the Civil Rights Act made us all equal. It must be nice to think that way, but it’s a luxury that I sadly cannot afford. The minute that I think the law treats us all equally is the minute I make a “sudden movement” around a police officer and end up with 50 bullets in me while reaching for my iPhone.

But I’m not bitter about that. Things are better for me than they were for my mother (born in 1950 in Clarksdale, Mississippi, a.k.a “a racial hell I never would have survived”). I have every reason to hope that things will be better for my children than they are for me. I have the confidence that things continue to get better because people are not born racist. They have to be taught it. And the best antidote to an ignorant upbringing is exposure and experience.

Exposure is what affirmative action is all about. You see, affirmative action doesn’t just help minorities, it helps white people. It helps white people be a little less ignorant about other people and their cultures, which helps them be a little less afraid of other people, which helps them be a little less racist towards other people. It helps minorities be less racist too, of course — less racist towards white people, and less racist towards other minorities. When you force everybody to integrate, people learn that we’re not all that different. And, with the exception of a few sad individuals who will be overrepresented in anonymous comments on the internet, who doesn’t want to learn to be a little less racist?

Using the Constitution to stop something that helps us learn how to not hate each other seems like the true perversion of first principles. I hope Chief Justice Roberts thinks about all that before he graces us with his next platitude about racial harmony.

Fisher v. University of Texas [U.S. Court of Appeals for the Fifth Circuit (PDF)]
Fifth Circuit Approves Race-Based Admissions at Univ. of Texas [WSJ Law Blog]
UT admission policy upheld [Austin-American Statesman]
Is the End Near for Affirmative Action? [First One @ First Street]

(hidden for your protection)

comments sponsored by

Show all comments