Uncle Thomas is Still A Lawn Jockey for the Extreme Right

Yesterday, the United States Supreme Court issued its decision for the case of Fisher v. the University of Texas at Austin. Thankfully, the Supreme Court did not end affirmative action. The Court held that the lower court did not apply the proper legal standard, strict scrutiny to evaluate the University's affirmative action plan under the Equal Protection Clause. Accordingly, the Court remanded the case back to the lower court and ordered that the court apply the strict scrutiny standard. More specifically, the Court held that:

Rather than perform this searching examination, the Fifth Circuit held petitioner could challenge only whether the University’s decision. to use race as an admissions factor “was made in good faith.” It presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption. It thus undertook the narrow tailoring requirement with a “degree of deference” to the school. These expressions of the controlling standard are at odds with Grutter’s command that “all racial classifications imposed by government ‘must be analyzed by a reviewing court under strict scrutiny.’ ” 539 U. S., at 326. Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice,yet that is what the District Court and Fifth Circuit did here. The Court vacates the Fifth Circuit’s judgment. But fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis. In determining whether summary judgment in the University’s favor was appropriate, the Fifth Circuit must assess whether the University has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.

Thank God that the Supreme Court did not decide to end affirmative action. At least for a second, we can breathe a sigh of relief. Now, it the time for the civil rights community to mobilize and develop a sophisticated messaging and advocacy strategy. This case or/and another parallel case will back before the Supreme Court for consideration. So, we must start organizing now.

While I am relieved by the Supreme Court's ruling, I am disturbed, but not surprised, by Justice Thomas' concurring opinion. His concurring opinion in Fisher is just another example proving that he is still a lawn jockey for the extreme right. If Uncle Thomas had his way, he would "overrule Grutter v. Bollinger, 539 U. S. 306 (2003), and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause." That house negro went on to say that "there is nothing 'pressing' or 'necessary' about obtaining whatever educational benefits may flow from racial diversity." He further stated that "the pursuit of diversity as an end is nothing more than impermissible “racial balancing.”

Then, he proceeded to make an absurd comparison. He compared diversity advocates to segregationists. More specifically, he states that:

It is also noteworthy that, in our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society. See, e.g., Brief for Respondents 6 (arguing that student body diversity “prepares students to become the next generation of leaders in an increasingly diverse society”). The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks.

After the idiotic comparison of affirmative action to segregation, it gets worst. Justice Thomas compares affirmative action to slavery. He states that:

I suspect that the University’s program is instead based on the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities. See post, at 3 (GINSBURG, J., dissenting) (“[G]overnment actors, including state universities, need not be blind to the lingering effects of ‘an overtly discriminatory past,’ the legacy of ‘centuries of law-sanctioned inequality’”). But “[h]istory should teach greater humility.” Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 609 (1990) (O’Connor, J., dissenting). The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.

Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life.

His concurring opinion is problematic for several reason. Contrary to Justice Thomas' arguments, promoting diversity is a compelling interest. Diversity has many benefits. It enhances the educational experience. In a heterogeneous environment, students are able to learn more by hearing different perspectives on issues. When diverse groups of people have more social and educational interaction, it reduces prejudice and bigotry. Furthermore, diversity in college prepares students for the work place.

Obviously, segregation and slavery were tools of oppression. They stifled and snuffed out our humanity and potential. Under slavery, we were chattel property like farm animals. During slavery, we were killed, beaten and raped. During the Jim Crow era, we could not vote. We segregated in every facet of life. We were segregated at school, on the bus, at the movies, at restaurants, at hotels, etc. During the Jim Crow era, African Americans could not attend schools like the University of Texas.

Unlike African Americans during segregation and slavery, whites as a group are not harmed by affirmative action. Race is simply a factor of a factor that universities consider when admitting students. Whites continue to be the majority at schools like the University of Texas at Austin. For instance, 45.5 percent of students at the university are white and only 4.5 percent of the students are black. In sum, segregation deprived black people of the right to education. In contrast, affirmative action does not deprive anyone of an education.

It is a tool to promote education, empowerment and advancement. Affirmative action made it possible for African Americans to obtain higher degrees. It has helped expand the black middle class. It has help many African Americans and other minorities become doctors, lawyers, engineers, teachers, professors, politicians and other professional positions. Unlike segregation, affirmative action opened the doors of opportunity.

Clarence Thomas walked through that door of opportunity and now he wants to close it in our faces. He benefited from affirmative action. That ingrate would not be a Supreme Court Justice without affirmative action. Affirmative action made it possible for him to attend college and law school. He crossed the bridge of success. Instead of helping his fellow African Americans cross that bridge, Uncle Thomas wants to burn that bridge and prevent his brethren from crossing it. Former President George Bush, Sr. appointed Thomas in part because Thomas is black. They needed another African American to fill the vacancy left by Justice Thurgood Marshall. It is a disgrace that Thomas has tried to tear down the progress that Justice Marshall helped build. It is an outrage that the only African American on the Supreme Court is a right wing nut who has no love for his people.

We Must Defend Affirmative Action Now!

As reported in the New York Times,

In a 2003 decision (Grutter v. Bollinger) that the majority said it expected would last for 25 years, the Supreme Court allowed public colleges and universities to take account of race in admission decisions...[T]he court signaled that it might end such affirmative action much sooner than that.

By agreeing to hear a major case (Fisher v. University of Texas at Austin) involving race-conscious admissions at the University of Texas, the court thrust affirmative action back into the public and political discourse after years in which it had mostly faded from view. Both supporters and opponents of affirmative action said they saw the announcement — and the change in the court’s makeup since 2003 — as a signal that the court’s five more conservative members might be prepared to do away with racial preferences in higher education...

The consequences of such a decision would be striking. It would, all sides agree, reduce the number of African-American and Latino students at nearly every selective college and graduate school, with more Asian-American and white students gaining entrance instead...

Ms. Fisher is soon to graduate from Louisiana State University. Lawyers for the University of Texas said that meant she had not suffered an injury that a court decision could address, meaning she does not have standing to sue.

Ms. Fisher’s argument is that Texas cannot have it both ways. Having implemented a race-neutral program to increase minority admissions, she says, Texas may not supplement it with a race-conscious one. Texas officials said the additional effort was needed to make sure that individual classrooms contained a “critical mass” of minority students.

The University of Texas clearly satisfied the requirements of Grutter by implementing a multi-factor admission policy. The top ten percent of all Texas high school graduates are automatically admitted to the university.  They make up 88% percent of the students admitted.

The remainder are admitted using a multi-factor admission policy. Race is just one of many factors that the university considers. As noted in the Fifth Circuit's decision, the school considers standardized test scores, high school class rank, essays, "leadership qualities, awards and honors, work experience,...extracurricular activities and community service...socio-economic status of applicant and his or her high school and...the applicant's race."

That is not reverse discrimination. For decades, as documented in the U.S. Supreme Court case of Sweatt v. Painter, the University of Texas deliberately denied qualified African Americans admission solely because of their race. Today, vast inequities continue to exist between affluent, suburban white public school districts and poor, urban minority school districts.  Affirmative action is a means to remedy the continuing impact of that despicable legacy.  In the words of President Lyndon Johnson, "You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say you are free to compete with all the others, and still just believe that you have been completely fair." (Source: Leadership Conference)

Clearly, by deciding to hear this case, the Supreme Court is sending a clear message. The days of affirmative action are numbered.  The legacy of Brown is in jeopardy. If we do not act, we may witness the re-segregation of higher education. While doors to higher education close to black people, the doors to prison remain wide open. As stated in the Fifth Circuit's opinion, the African American enrollment rate at the University of Texas dropped almost 40 percent when the university ended its prior affirmative action program in 1996. According to a June 2005 Social Science Quarterly study, at elite universities:

"....without affirmative action the acceptance rate for African-American candidates likely would fall nearly two-thirds, from 33.7 percent to 12.2 percent, while the acceptance rate for Hispanic applicants likely would be cut in half, from 26.8 percent to 12.9 percent. While these declines are dramatic, the authors note that the long-term impact could be worse."

It would be tragic and ironic if affirmative action ends while a black man is in the White House. We cannot passively allow that to happen. Certainly, civil rights law organizations will file amicus briefs in favor of affirmative action. However, the legal strategy is only one aspect of the struggle.

We cannot let affirmative action die without a fight. We must protest in the streets, on the college campuses, on the airways and on the blogosphere immediately. We must do everything in power to educate the public about the benefits of diversity and affirmative action. We cannot afford to wait until the US Supreme Court begins to hear oral arguments. We must act now! We must defend affirmative action!

This article is cross-posted on Jack and Jill Politics.