We live today in neither a colorblind nor post-racial society, though many – in good faith, I suppose – would like to fantasize otherwise. Still, in the wake of recent tragedies from Ferguson and Staten Island, to Charleston and Baltimore, more Americans are now being compelled to reexamine this nation’s lamentable history of racism and earnestly reckon with its lingering vestiges in our neighborhoods, communities and campuses.
But the Supreme Court, I fear, will neglect this history in favor of a myth that we have somehow overcome our tenacious racial inequities — as if the stains of slavery, segregation and discrimination could be so easily wiped clean. Indeed, the Court’s decision to reconsider Fisher v. University of Texas portends a threat to diversity in higher education. And there is good reason to fear.
In case after case, the Roberts Court has refused to recognize, let alone confront, the realities of race in America. Chief among the bench’s colorblind is the chief justice himself. In the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice John Roberts Jr. penned an opinion that struck down plans to maintain racial integration in the Louisville and Seattle public school systems. “The way to stop discrimination on the basis of race,” according to Roberts, “is to stop discriminating on the basis of race.” The chief justice’s platitude – divorced from reality, both past and present – ignores centuries of discrimination and the lived experiences of racial minorities today. More disconcerting still is Roberts’ claim that Brown v. Board of Education vindicates his reasoning: that the segregation imposed by the Topeka School Board is somehow equivalent to the Louisville and Seattle school districts’ efforts to achieve diversity and preclude racial isolation. It is, as former Justice John Paul Stevens exposed in his dissent, “a cruel irony.”
This amnesia of history resurfaced in 2013, when the Court eviscerated an enduring achievement of the Civil Rights Movement: the Voting Rights Act of 1965. The issue was the federal preclearance required of certain, mostly Southern, states and counties to change election procedures. But the unsettling record of voting rights in these jurisdictions is not ancient history. In fact, between 1982 and 2006, the Justice Department successfully blocked over 2,400 discriminatory voting practices on the basis of race. “Our country has changed,” Roberts concluded for the majority in Shelby County v. Holder. But when the realities of race continue to painfully unfold in our communities and classrooms, can we sincerely say that it has?
Now, in 2016, the Roberts Court has once again entertained the delusion that we live in a colorblind society and, accordingly, must forsake color-conscious laws and attitudes. Indeed, the Court’s decision to hear Fisher for the second time — rather than affirming the judgment of the lower courts, as Justice Ruth Bader Ginsburg urged — disregards Texas’ persistent history of racial discrimination. At stake is the University of Texas’ race-conscious admissions policy — tailored to both redeem its sad past of segregation and, later, hostility to racial inclusion, and remedy the inequity in higher education for blacks and Latinos. The efforts to stymie student body diversity come at a time when the resegregation of Texan public schools has disturbingly proliferated. In 2010, 40 percent of black students attended a highly segregated school with 90 to 100 percent minority enrollment. The end to racial isolation, as hoped for by Brown six decades ago, is regrettably far from reach.
The affirmative action measures that have helped to integrate our society must be maintained until equal access to educational opportunities is made real. Surely it is obvious that race-conscious admissions should not be retired simply because there has been progress in reducing disparities? To do so, as Justice Ginsburg memorably dissented in Shelby County, would be as senseless as “throwing away your umbrella in a rainstorm because you are not getting wet.” Indeed, states that have already banned racial preferences in higher education admissions — whether by state referenda, legislation or executive order — find themselves in a deluge without cover. A 2013 study by the University of Washington concluded that states that have banned race-based affirmative action saw a cumulative decrease of 23 percent in a minority student’s chances of admission to public universities. California, for instance, has yet to recover from the decline in black and Latino enrollment since affirmative action was outlawed in 1996. By 2010, admission rates for blacks at the University of California, Berkeley and the University of California, Los Angeles were effectively reduced by 70 to 75 percent.
Colorblindness, at best, is a blindness to history — a disregard for the legacy of chattel slavery, segregation and discrimination and its effects on all dimensions of American life. The historian Arthur Schlesinger Jr. opined that “the great strength of history in a free society is its capacity for self-correction.” The initial step in correcting the pernicious consequences of centuries-old racism, then, is to acknowledge that the problem still exists. In order to be answerable to the future, we must first be accountable to the past.
It is encouraging that we are now speaking more candidly and meaningfully about race. If some justices are so inclined to ignore persisting racial inequities, it comes as a relief to know that many students do not. This year especially, America’s college campuses have seen a solidarity of student activism demanding more just and safe spaces of learning. Empowered by other racial justice campaigns such as the Black Lives Matter movement, students nationwide have sought to root out the entrenched prejudice and inequality in higher education, pressuring administrators to increase student and faculty diversity, adopt and expand programs on cultural sensitivity and disavow names or symbols with racist legacies.
It remains to be seen how the Supreme Court will rule in Fisher, though it is hardly difficult to forecast which way the wind blows. But this much is certain: the goal of more inclusive and integrated campuses would benefit immeasurably if the Court deferred to historical consciousness. We — and the justices, especially — must dispose of the folly that race no longer matters. This invention of a colorblind society, as Justice Sonia Sotomayor passionately reminded us in Schuette v. Coalition to Defend Affirmative Action, is “out of touch with reality.” It is also a distortion of history. And if history is indeed said to repeat itself, then we should do well not to neglect our past, but to be mindful of it and, hopefully, learn from it.
