Supreme Court stands diversity on its head

When U.S. Supreme Court Chief Justice Roberts read the decision in the Shelby County voting rights case, the courtroom was graveyard silent. He spoke of the lives lost and brutal injustices that led to the passage of the Voting Rights Act of 1965. However, the country had changed, he said. Congress was wrong to re-authorize these voting protections in 2006. 

Section 5 of the Act, the part which requires many Southern states to seek pre-clearance from the U.S. Attorney General based on a certain formula, he said, was wrong. The formula was old. Congress must start over with a new formula. The chances of this happening are nearly nonexistent.

Given the past failures of a conflicted Congress, the Court had torn away the most powerful part of the Act and left a battered shell for a distracted Congress to retrofit. The same Congress unable to complete its own agenda has been told to pass voting legislation only passed in 1965 because people were dying just to vote.   

Like so many listening that day, my sense of doom grew with each word. Despite 15,000 pages of evidence that people of color still needed to be protected, a 5-4 majority believed people of color must once again prove their vulnerability to racism, bigotry, and the machinations of majority politics. 

Now, expensive lawsuits must be brought to prove harm after a stolen election is over. Before, under Section 5, the burden was on the local government to prove voting changes were harmless.  

Justice Clarence Thomas wrote that he would completely abolish all of Section 5, not just the formula pertaining to certain states. Then again, Justice Thomas described affirmative action as insidious and racial engineering. To him, black and Hispanic student achievement are harmed by affirmative action policies like those in the case of Fisher v. University of Texas.

Abigail Fisher challenged her denial of admission to the University of Texas-Austin as race discrimination. Although the school takes into account a number of factors, including race, Fisher claims it was only her race that prevented admission. Although Texas created its admissions’ policy based squarely on compliance with an earlier Michigan ruling, this recent Texas decision once again places affirmative action in jeopardy.

In that early Michigan case, a white applicant, Barbara Grutter claimed she was denied admission to University of Michigan’s law school due to her race. The Court in Grutter v. Bollinger ruled race could be part of admissions, as long as it was only a part.

So, Texas used race as a part and not the sole reason. Texas allows the top 10 percent of all high school students to attend the college. Then, those not admitted into the top 10 percent may be selected based on personal factors, such as whether the applicant is an immigrant or a child of a single parent or poor or a person of color. Race is only one part.

However, now race as only one factor may be unconstitutional. The Court’s Fisher decision is disappointing. But, it’s not an outright disaster. The lower court is supposed to review the case and decide if there is any other workable alternative that creates diversity on campus without involving race.

Certainly, this non-race admissions policy may be challenged as some clandestine affirmative action. Either way, questions emerge. How many students of color are needed to provide diversity? Since the Court allows affirmative action in order to bring diversity to the education of white students, then students of color are playing a precarious role. Universities are expected to fix a festering race discrimination problem without using the word “race.”

In the midst of this struggle, admissions officers are called benign slave-holders by Justice Thomas. He would dismantle all affirmative action programs. Comparing it to slavery and Jim Crow-era segregation, this beneficiary of affirmative action believes it as harmful to blacks and Hispanics as slavery.

Ironically, affirmative action, which benefited Justice Thomas, has given him the power to end it forever. It is also ironic that the Equal Protection clause, which was enacted solely for African Americans, is now used against them. Diversity, which was meant to focus on people of color, is now meant to benefit the education of white students.

Gloria J. Browne-Marshall is a legal correspondent covering the U.S. Supreme Court. She is an associate professor of Constitutional Law at John Jay College in New York City and author of “Race, Law, and American Society: 1607 to Present.” Follow her on Twitter @GBrowneMarshall.