Why This Supreme Court Ruling on Affirmative Action Is as Dubious as the Roberts’ Court’s Previous Rulings on Race-Related Issues

In contemporary America, income inequality is indisputably increasing and indisputably limiting the potential and the upward mobility of the ever-increasing percentage of Americans slipping into the have-not category.

In the absence of significant upward pressure on wages exerted by the large industrial unions and in the absence of a large industrial workforce because of the automation of plants in this country and because of overseas competition in labor-intensive manufacturing, higher education is the major factor again differentiating the working class from the middle class.

Some African-Americans, Hispanic-Americans, and other people of color have undoubtedly achieved great entrepreneurial and professional success. And some White Americans live in rural areas in which poverty is endemic. But the greatest concentrations of poverty are more than ever in urban districts with heavy concentrations of people of color.

The schools in those urban districts have become illustrations of our “under-performing public schools,” in the phrasing used by so-called “reformers,” either because the system is broken and poor teachers are protected by unions or because education cannot be separated from the other very challenging socio-economic realities that result from desperate impoverishment. Whatever the reason, the students in those school districts clearly have a much lower chance at academic achievement and then a much lower chance at translating their academic achievement into a university education that is their best means of transcending poverty.

At the same time as income inequality has been becoming more entrenched, American politics has been becoming more vehemently partisan, with the GOP representing largely White rural and affluent suburban districts and the Democratic party representing more racially diverse urban districts. Indeed, in many states, gerrymandering has exaggerated those distinctions–the close correlation of racial, socio-economic, and political identifications–well beyond what has previously been the case.

So, the Supreme Court decision seems based on two very flawed premises.

First, although it is possible to argue that racial prejudice is not as obvious as it once was and is less of an impediment to personal prosperity than it once was, there is overwhelming statistical evidence that a child born into urban poverty has a much greater chance of remaining poor than of escaping poverty—and is among the least likely of any Americans to achieve any upward mobility and economic security.

Second, the same Republican legislators and governors who have been slashing funding for safety-net programs and public education cannot be expected to have anything but a jaundiced view of the urban poor who live largely outside of their carefully engineered districts. So to expect them to be consistently sensitive to or even reasonable on issues affecting the urban poor is ridiculous to the point of being farcical.

There is a very simple way in which the Justices who are responsible for this ruling might have been convinced of the continuing need for affirmative action. They might have taken off their black robes and taken a stroll across the manicured campus lawns of any one of the elite universities in this country. Then they might have followed that stroll with a walk of comparable length through any one of the tough urban neighborhoods in the closest big city. My guess is that the second walk would be anything but a casual stroll and that it might, in fact, be transformative.*

Justice Sotomayor’s fierce and lengthy minority opinion on this decision is a testament to her continuing awareness of realities to which many of the other justices, including Justice Thomas, seem ideologically determined to be oblivious.

The Roberts’ Court’s ruling that the Voting Rights Act is no longer necessary was immediately followed—and, by immediately, I mean within just a few hours to a few days—by a wave of new voter-suppression laws in states with GOP governors and legislatures.

The results of this decision are even more predictable because recent studies have shown that decreasing state support for public higher education has already reduced the access of economically disadvantaged students to the most prestigious institutions in just about every state.


*Postscript: On this afternoon’s news, all of the commentators are abuzz about Cliven Bundy, the Nevada yokel whose every utterance seems to stretch the possibilities of paradoxical assertion, who has now revealed quite plainly and unapologetically that he is a racist. Moreover, he has justified his racism by describing the impact of a single drive through a poor neighborhood in Las Vegas, which seems to have confirmed in his mind every derogatory caricature of African-Americans that he has ever heard and that he has now regurgitated in a stream of patently ignorant convictions that not even Sean Hannity can edit into a palatable soundbite.

It has given me pause about my suggestion that the Justices who have ruled against affirmative action need more viscerally to understand the great divide between the advantages fostered by attending our elite universities and the very difficult environments in which many academically gifted poor children of color are coming of age. Perhaps I have been reasoning from a flawed premise. Although I would like to believe that the Justices have more capacity for understanding than Cliven Bundy has demonstrated, it is very possible that a walk through a poor urban neighborhood would also simply reinforce, rather than transform, their assumptions about race and poverty. Justice Thomas has never said much on the public record about race or about anything else, but Justice Scalia, in particular, has exhibited a penchant for expressing some very anachronistic attitudes, especially on issues such as gay rights.

So maybe I have been simply whistling in the dark. (I’m not sure that that’s an idiom that originated on the frontier, but I have seen enough John Wayne movies and other Westerns in which it has been a plot gimmick to associate it with the frontier. In my old neighborhood, in a coal-mining town far from the Western frontier, we would have described someone who ran off at the mouth as Bundy has, as someone who was whistling up his own butt.)


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