Was U.S. Supreme Court Racist in Approving Michigan Affirmative Action Ban?

Written by Kevin Fobbs on April 24, 2014

The howls from the left — the liberals and the race baiters are raising their fists in anger and indignation because of the U.S. Supreme Court’s Affirmative Action decision this week. By a 6 to 2 decision, the U.S. Supreme Court (SCOTUS) Justices approved Michigan’s voter-approved ban on the use of Affirmative Action, in hiring and education according to USA Today. Was it racism or justice being balanced?

Ever since the SCOTUS decision of 1978 where the court first addressed affirmative action in Regents of the University of California v. Bakke, their has been turmoil on both sides concerning use of racial preferences. The court decision was against the university in setting “aside a fixed number of seats for minorities at its medical school”, determining the set-aside “violated Title VI of the 1964 Civil Rights Act.” But it also ruled that race could be used as one of the criteria in addressing past discriminatory practices.

So, the door was opened in creating a two-tier justice system where discrimination based on race became a secondary consideration to achieving a diversely based student body. The need for diversity could therefore justify appropriate affirmative action programs. So the question: What is an appropriate remedy?

Since that moment, when the U.S. Supreme Court made a decision to allow Affirmative Action in a variety of higher education scenarios there has always been a reckoning that the court and nation would have to face. The court in effect took the easy way out in allowing liberal institutions to not address racism and discrimination , but instead create a new version of “institutional racism”.

The reality of this decision by SCOTUS absolutely guaranteed that a day of reckoning for the country and for the courts would arrive. That reckoning came on Monday, in a 6 to 2 decision, when the U.S. Supreme Court Justices approved Michigan’s voter-approved ban on the use of Affirmative Action.

With the 6-2 majority, now more than ever before, the nation may be prepared to move past the unequal use of legalities to promote fair and balanced justice in the United States. In fact, Monday’s decision may pave the way for at least seven other states that have similar Affirmative Action bans. Those states are Nebraska, Arizona, Florida, California, Oklahoma, Washington and New Hampshire.

For many who have been either impacted by the lingering Affirmative Action policies that have deprived far too many Americans of a true equal footing to navigate toward the American Dream, this may be the beginning of the end of those restrictive practices.

What the decision will most likely impact are those 42 other states that have some fashion of Affirmative Action programs being utilized presently. Currently those programs will be faced with increased scrutiny by courts. In fact, in last June’s 2013 Texas decision involving the University of Texas, its program is now facing more examination.

Was the decision racist or realistic with an intention by the SCOTUS justices to fit the decision for the 21st century? In the past, the goal of the nation’s highest court was to eliminate traditional patterns of racial discrimination and job and educational segregation. A test that the court used to test the lawfulness of the Affirmative Action program was whether it “unduly” trampled on the interests of white workers. If a white worker was fired or prevented from advancement, then the Affirmative Action program was ruled unconstitutional.

But the decision by the court had an equally deeper meaning and point. Writing for the majority in the decision, Justice Kennedy pointed out that the decision was not about racial preferences as much as that stopping “Michigan voters from making their own decision on affirmative action would be ‘an unprecedented restriction on a fundamental right held by all in common,’ “ reported USA Today

So it is clear in this case, as it should be abundantly clear in the cases involving voter same-sex marriage bans, that the will of the people must account for some sense of sovereignty.

Yet, Justice Sonia Sotomayor sharply disagreed with the majority and in her 58-page dissent she suggested that “a product of affirmative action policies, minority enrollment will decline at Michigan’s public universities, just as it has in California and elsewhere. The numbers do not lie.”

The essence of her legal logic is that one wrong, however noble the intent, does not allow for that ill-conceived intent to stand. The law which required race-based proposals to continue to not simply repair “wrongs of the past” were themselves in their longevity creating a two-tiered system in America.

Racism in any form is still unconstitutional and cannot be permitted. Separate and unequal legal justice is what Michigan voters banned a decade ago, and now the U.S. Supreme Court has agreed.

Image: Courtesy of: http://www.harpyness.com/2009/05/28/would-you-like-a-side-of-mascara-with-your-surf-turf/

Kevin Fobbs
Kevin Fobbs has more than 35 years of wide-ranging experience as a community and tenant organizer, Legal Services outreach program director, public relations consultant, business executive, gubernatorial and presidential appointee, political advisor, widely published writer, and national lecturer. Kevin is co-chair and co-founder of AC-3 (American-Canadian Conservative Coalition) that focuses on issues on both sides of the border between the two countries.