The Supreme Court’s affirmative action ruling that bans race-conscious admissions in higher education has stirred emotions across the nation. The 6-3 vote with its liberal members voting against the decision signaled signs of contention.
One of those liberal justices, Ketanji Brown Jackson called the decision “a tragedy,” adding that the court has “detached itself from this country’s actual past and present experiences.” Justice Clarence Thomas, who has long opposed affirmative action policies, wrote that the decision “sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.”
Among the conservative, frustrated and elated, many wonder what’s next. Can the right-wing tide influencing Supreme Court decisions be reversed? Will this ruling extend outside the halls of academia and affect businesses and other institutions influenced by race-based policies?
Already Missouri Attorney General Andrew Bailey has announced that the Supreme Court decision should extend beyond college admissions saying that “Institutions subject to the U.S. Constitution or Title VI must immediately cease their practice of using race-based standards to make decisions about things like admissions, scholarships, programs, and employment.”
To answer these questions and more, we turn to retired attorney, legal scholar, former administrator at the University of Missouri and this newspaper’s “2017 Lifetime Achiever in Education,” Michael Middleton. Middleton, 76, was part of the first generation of Black Americans who came of age during the affirmative action era.
“It made great sense to me,” Middleton explained. “It (affirmative action) was a remedy and the need for it was apparent. It was a remedy that the courts could use after a finding of overtly racist and discriminatory practices.”
In 1965, President Lyndon B. Johnson issued Executive Order 11246, which prohibited employment discrimination “based on race, color, religion, and national origin by those organizations receiving federal contracts and subcontracts.” The order was amended in 1967, to include sex on the list. It wasn’t until 2003 with a Supreme Court case known as Grutter v. Bollinger, that a national precedent allowing schools to consider race when making admissions decisions was legally established.
Middleton worked for the Department of Justice in the early 1970s. He was part of the team that successfully sued Jackson Mississippi, his hometown, for violating affirmative action laws. He recalled with relish how he convinced his superiors that Jackson was a good target for a potential lawsuit because the city refused to hire black employees.
Armed with a law degree “a nice suit” and great articulation, Middleton walked into Jackson City’s HR department seeking a job. Middleton said the female worker, who had no idea she was being set up by a federal agent, told him, “‘Boy, that’s not how you get a job in Jackson…you go down there by the viaduct under Highway 49 on Saturday morning and you’ll see a truck with a sign that reads “work” …hop on that truck and they’ll take you to a job.’”
“Now, that was in the deep South but things like that were happening all over the country regarding employment,” Middleton said. “That’s why the judicial system and the courts developed affirmative action; to try to equalize opportunity in the country.”
In his opinion, Justice Clarence Thomas wrote that affirmative action “can undermine the self-esteem and self-respect of the people it’s supposedly helping.”
Middleton chuckled when hearing that opinion.
“Well, I know Clarence and he probably believes that, and I can sort of understand it. Clarence is a very angry and proud person of color. I can see him being insulted that somebody white had given him something he didn’t deserve because he was Black.”
It was during the Carter Administration that Middleton was appointed to work in the U.S. Department of Education’s civil rights division. When President Ronald Reagan was elected, he appointed Thomas as the Assistant Secretary for Civil Rights in the educational department. Thomas, Middleton said, asked him to stay on as his deputy assistant. Middleton quit during Reagan’s second term. He described Thomas as “a different kind of guy.”
Chief Justice John Roberts relied on a narrow interpretation of the 1954 Brown v. Board of Education landmark opinion to justify his ruling against affirmative action.
Roberts wrote: “The conclusion reached by the Brown Court was thus unmistakably clear: the right to a public education ‘must be made available to all on equal terms.’”
Admitting that he hadn’t read all the opinions regarding the recent Supreme Court case, Middleton gave his best interpretation of Robert’s “equal terms” opinion.
“That’s fine if that had been the case for the past 400 years,” Middleton said. “But it doesn’t take into account that white people have acquired absolute privilege by enslaving Black people; miseducating black people and using religion to inculcate white supremacist ideology for the past 400 years.”
Midleton absolutely agrees with Justice Brown Jackson who wrote in her dissenting opinion that: “Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better.”
“She’s absolutely right,” Middleton said, adding: “And we’re lucky she’s there to say it because Clarence (Thomas) doesn’t even understand it.”
Congresswoman Cori Bush echoed Brown Jackson’s thoughts in her recent statement, saying, “Affirmative action helped level the racist and uneven playing field.”
“In its dedication to moving backwards,” Bush continued, “the Supreme Court has once again rolled back protections for people in marginalized communities across this country.”
All hope is not lost, Middleton argued.
“I kind of hope the country isn’t as bad off as the Supreme Court suggests,” he said. “I think businesses will be a bit more progressive. I think they will recognize the benefits of having diversity in their workforce.”
The country, Middleton added, is experiencing a “severe overreaction” in terms of “advancing the conditions of Black and Brown folk in this country.” He added that politicians like Bailey are pushing a backwards agenda.
“Missouri is close to Florida in terms of these angry reactionary approaches to progress for people of color or LGBTIQA+ folk. Anybody who can be identified as part of the ‘woke generation,’ anybody considered ‘progressive’ is to be destroyed. This is the attitude of attorney generals and governors in many states around the country.”
The courts, which President Trump filled with right-leaning justices, are “extremely reactionary,” Middleton continued, adding: “Right-thinking people will limit the impact of this decision in the broader society; if we can get ourselves together that is. But, if we get another Trump or a Ron DeSantis or something, we’re really in trouble.”
The remedy, the legal scholar stressed, is to have engaged and informed voters.
“The nonsense gets a lot of attention,” Middleton said, describing the current political climate. “We just have to get our senses back. We must become more involved; we must educate our young people; get our allies on board, work with Hispanics, women and other marginalized groups. We must build the kinds of coalitions we need.
“Then we just have to keep pushing, pushing and keep moving forward.”
