Six Supremely Absurd Court Statements on Affirmative Action - Higher Education
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Six Supremely Absurd Court Statements on Affirmative Action

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Last week, the U.S. Supreme Court rejected a challenge to a voter-approved Michigan law that bans affirmative action in the college admissions process. On a 6-2 vote in Schuette v. BAMN, the Supreme Court reversed the opinion of the Sixth Circuit Court that struck down the law.

Over the weekend, I took some time to read all of the opinions from the case. Aside from Associate Justice Sonia Sotomayor judicious and forthright 58-page dissent, I felt like I was reading scripts from the theater of the absurd.

I have listed below what I consider the six most absurd statements from the opinions.

No.1: Associate Justice Anthony Kennedy. “The electorate’s instruction to governmental entities not to embark upon the course of race-defined and race-based preferences was adopted, we must assume, because the voters deemed a preference system to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it.”

Justice Kennedy’s assumption is not only wrong, but ridiculous. Michigan voters deemed a preference system to be very wise, but only when all the racial preferences benefit White students. The current system — the tragically unequal K-12 system, all of the major admission factors from GPAs, to standardized tests, to performance of college preparatory courses — benefits students from wealthy families attending majority White schools and therefore gives race-based preferences to White applicants.

No. 2: Associate Justice Anthony Kennedy. “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.”

No one is falling for this silliness. Justice Kennedy knows whomever the court empowers to resolve the debate about affirmative action will determine how the debate is resolved. Justice Kennedy knows what different groups would do. He knows if the court empowers White Michigan voters to resolve the debate — as the U.S. Supreme Court has — then affirmative action will be disallowed. He knows if the court empowers college officials, progressive Americans of all races, African-Americans or Latinos to resolve the debate, then affirmative action will be allowed.

No. 3: Chief Justice John Roberts. “To disagree with the dissent’s views on the costs and benefits of racial preferences is not to “wish away, rather than confront” racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

This was Chief Justice Roberts’ absurd response to Associate Justice Sonia Sotomayor’s 58-page dissent. It does not do more harm than good, to question whether Roberts cares more about preserving or eliminating racial inequality, to question why Roberts refuses to even acknowledge racial inequality as a serious problems that needs fixing. As Justice Sotomayor wrote, “This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

No. 4: Associate Justice Antonin Scalia. “It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.”

Another statement that dashed into the realm of absurdity. The people of the State of Michigan have not adopted their own fundamental law in an effort to enact equal protection. If Justice Scalia, if his court, if the opponents of affirmative action in Michigan truly understood the Equal Protection Clause, then state-provided K-12 schools would not be so devastatingly unequal. It is offensive to the intelligence of Americans for anyone to claim that the killers of affirmative action care about equality.

No. 5: Associate Justice Antonin Scalia. “I would instead reaffirm that the ‘ordinary principles of our law [and] of our democratic heritage’ require ‘plaintiffs alleging equal protection violations’ stemming from facially neutral acts to ‘prove intent and causation and not merely the existence of racial disparity.’”

Proving intent in the 21st century is an absurd proposition. In a country that has such a massive history of racial discrimination, to put the onus of proof on the accuser of racial discrimination rather than the discriminator is beyond absurd, it is criminal. Twenty-first century racists are smart enough to never use racial language in their public rhetoric or documentation (and rarely in private, excluding of course, L.A. Clippers owner Donald Sterling). Racial disparities nearly always stem from racist policies.

No. 6: Associate Justice Antonin Scalia. “As Justice Harlan observed over a century ago, ‘(o)ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.’ The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.

Justice Scalia had the audacity to quote the venerable Justice John Marshall Harlan, the sole dissenter in the 1896 case Plessy v. Ferguson. While Justice Scalia preserved White privilege and racial inequality in Michigan, Justice Harlan stood against legalizing Jim Crow segregation, which ended up preserving White privilege and racial inequality in the United States. I saved the most absurd statement of all for last.

Dr. Ibram X. Kendi (formerly Ibram H. Rogers) is an assistant professor of Africana studies at the University at Albany—SUNY. He is the author of The Black Campus Movement: Black Students and the Racial Reconstitution of Higher Education, 1965-1972. Follow on Twitter @DrIbram.

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