The Supreme Court and Racial Equality

 Fisher outside the Supreme Court

 Fisher vs. U of Texas Could Turn Back the Clock

The case of Fisher V The University of Texas dramatizes the fact that rulings by the Supreme Court can determine the life’s chances of entire groups of American citizens, especially the poor, the powerless and minorities. The fate of Afro-Americans has been determined to an extraordinary degree by Supreme Court decisions.  Several times there have been dramatic swings in the in the opinion of the High Court on the same issue, and the life chances of Afro-Americans were shaped by those swings.

Now the Court is about to rule on a case that could radically decrease the chances for Afro-Americans, and other minorities, to succeed in this country.  If the court kills all Affirmative Action programs it will cement the advantages whites have obtained due to over three centuries of race based slavery and caste discrimination based on the principle of “white supremacy.” Without Affirmative Action guidelines the white majority will award the lion’s share of the benefits offered by American society to their kith and kin.

Hence jobs for which racial minorities and women are equally qualified – or even slightly better – will be denied them in favor of white males who may be less qualified.  This was the normal way of doing things before the advent of Affirmative Action programs.  Hence Affirmative Action requirements are dsigned to level the playing field, not give Afro-Americans and other minorities an unfair advantage.

It has proved an effective remedy for the practice systematic discrimination against the protected groups that restricted their chances of success in a highly competitive society in the past, and offers protection against institutional racism in American society today.  There is a supreme irony in the fact that the present case involves race and admissions policy at the University of Texas, because it’s the site of the landmark case Sweatt V. Painter.

In 1950 Herman Marion Sweatt, a Houston Texas mail carrier who aspired to become a lawyer, won a suit against the law school at the University of Texas, which had denied him admission because of his race.  The Supreme Court’s ruling found that the University’s policy violated Sweatt’s constitutional rights under the Equal Protection Clause of the 14th Amendment, which had been defined as “Separate but Equal” in the court’s ruling on  the Plessy v Ferguson case of 1896.

When Sweatt’s lawyers convinced the Court that a law school set up for black students was demonstrably inferior, the University of Texas law School was forced to admit him. Now Abigail Fischer, a white female who was refused admission to the University of Texas, has filed a case charging racial discrimination under the Equal Protection Clause, claiming she was not admitted to the University because of her race.

The basis for Ms. Fischer’s charge is that a Texas program which requires the University of Texas to admit the top 10% of all high school students, allows the university to admit non-white students who are less qualified than her.  However the Texas policy is following the guidelines handed down in the Grutter v Bollinger decision of 2003, which allowed universities to consider race as a factor in admissions…so long as it was not the deciding factor.

Never the less Ms. Fischer contends that she was denied admission to the university of Texas because of her race.  Hence this is the question that will be decided by the supreme court in this case.   When we look at the changes to the Court since Grutter v. Bollinger – with the Bush appointees John Roberts and Samuel Alito both passionate opponents of race based remedies, and Sandra Day O’Conner, who wrote the opinion in Grutter retired, and Elena Kagan recusing herself, we might well witness the death of Affirmative Action – a policy that quadrupled the black middle class and took white women through the glass ceiling.

Savvy court watchers who do it for a living have warned us not to predict what the Justices are likely to decide based upon the questions they ask during oral arguments.  Yet it is hard not to rush to judgment based on the persistent questions of Justice Roberts as to what the university considers a “critical mass” of black and Hispanic students, which would render race sensitive admissions policies obsolete.

The lawyers for the university must view this line of questioning as a trap, because all of the precedents in previous cases rule against racial quotas.  Hence if they cite a specific figure they could be accused of setting a quota by the other side and lose the case on this issue.  So the university’s lawyers are mum on the issue. But the legal precedents call for close scrutiny of any government program in which race is at issue.

This confusing state of American jurisprudence on racial matters prompted Chief Justice Roberts to ask Gregory G. Garre, lead counsel for the University, “How am supposed to do the job that our precedents say I should do?”   According to the New York Times’ reportage of 10/11/12 “The questioning on Wednesday from the Chief Justice and his colleagues was b turns caustic, exasperated and despairing.”

Retired Justice Sandra Day O’Conner, who departed the Court in 2006, was present to hear the arguments.  Some Court watchers speculated that she was there to see if the precedent set in the opinion she authored in Grutter Vs. Bollinger, which said race could be considered as a factor in a “holistic review” of a variety of admission criteria.

Alas, the fruits of many generations of struggle will be wiped away in  flash.  The High Court giveth…and the High Court taketh away.  Hence it has presented Black Americans with both triumph and tragedy. That’s why it really, really, matters who is appointing the Justices!

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Playthell G. Benjamin

Harlem, New York

November 2, 2012

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