The Supreme Court’s Affirmative Action decision perpetuates the myth of a “post-racial” society

By a vote of 6 – 3, the ultra-conservative majority of the U.S. Supreme Court recently gutted the precedent of Affirmative Action in considering race for admission in higher education.

Beginning in 1961, President John F. Kennedy issued Executive Order 10925, using affirmative action for the first time by instructing federal contractors to take “affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin.” With that, Kennedy established the Committee on Equal Employment Opportunity. 

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The purpose of Affirmative Action in admissions and employment has from its inception been to level the playing field in a nation founded on the original sin of racism, which created a hierarchy of privilege and social and economic access on the basis of the socially constructed notion of “race.”

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Kennedy’s successors on both the Democratic and Republican sides of the aisle, including Johnson, Nixon, Carter, and others, strengthened Affirmative Action measures by instituting additional executive orders and by signing Congressional bills into law. President Jimmy Carter issued Executive Order 12138, creating a National Women’s Business Enterprise Policy, which required all agencies to take affirmative action to support women’s businesses.

The U.S. Supreme Court, in the case of Regents of the University of California v. Bakke, (1978) upheld the use of race as one factor in choosing among qualified applicants for university admission. The Court simultaneously ruled unlawful the university medical school’s practice of reserving 18 seats in each entering class of 100 for disadvantaged minority students.

The current Supreme Court, however, found Affirmative Action to be unconstitutional by violating the 14^th Amendment’s “equal access” clause.

“The result of today’s decision is that a person’s skin color may play a role in assessing individualized suspicion, but it cannot play a role in assessing that person’s individualized contributions to a diverse learning environment,” Justice Sonia Sotomayor wrote in her dissent. “That indefensible reading of the Constitution is not grounded in law and subverts the Fourteenth Amendment’s guarantee of equal protection.”

“Deeming race irrelevant in law does not make it so in life,” said Judge Ketanji Brown Jackson, the only Black woman on the court, who was joined in dissent by the court’s two other liberals. Jackson wrote that the majority had “detached itself from this country’s actual past and present experiences.”

She argued in terse terms that “no one benefits from ignorance.”

Jackson accused the majority of having a “let-them-eat-cake obliviousness” in how the ruling declared “‘colorblindness for all’ by legal fiat.”

The problem with colorblindness

With the ascendancy of Barack Obama, the media have on numerous occasions asserted that the United States can now be considered a “post-racial” society, where the notion of “race” has lost its significance and where our country’s long history of racism is now at an end.

For example, National Public Radio Senior News Analyst, Daniel Schorr, noted on All Things Considered during the presidential primaries in 2008 that with the emergence of Barack Obama, we have entered a new “post-racial” political era and that Obama “transcends race” and is “race free.”

And responding to Obama’s State of the Union message on January 27, 2010, MSNBC political analyst, Chris Matthews stated, “He is post-racial by all appearances. I forgot he was Black tonight for an hour. You know, he’s gone a long way to become a leader of this country, and past so much history, in just a year or two. I mean, it’s something we don’t even think about.”

These commentators and others imply a number of claims in their statements: The first is that we have become a “race-blind” or “colorblind” society – that race has become unimportant, that we don’t see “race” anymore. The second implication states that racism (i.e., prejudice along with social power to enact oppression by white people over people of color) is a thing of the past.

Is the United States now a “colorblind” society? Or even more importantly, should the United States be a “colorblind / race-blind” society? The very notion of “race-blindness” is deeply problematic.

Though telling someone, “I don’t see your race; I just see you as a human being,” may seem righteous, what are we really telling the person is, “I discount a part of you that I may not want to address” and “I will not see you in your multiple identities.” This has the tendency of erasing the person’s background and historical legacy. It hides the continuing hierarchical and systemic positionalities among white people and racially minoritized people.

In their book Whitewashing Race: The Myth of a Color-Blind Society, the authors show how the concept of “colorblindness / race-blindness” attempts to deny and further entrench hierarchical and deeply rooted systemic racial inequities and privileges accorded to white people.

We must as a society get beyond this false and counterproductive notion of “colorblindness / race-blindness” and confront head-on our history and current realities of racism. To use Mica Pollock’s term, “colormuteness,” we must engage in honest and open conversations on the impact and legacy of race relations in our country.

In addition, the assertion that we have fully addressed and finally concluded the long history of racism in the United States with the election of Barack Obama is simply unfounded.

Anti-racism consultant Valerie Batts discusses what she terms “new forms of racism.” While the Brown v. Board of Education decision (1954), the Civil Right Act (1964), and other judicial and legislative actions have criminalized a number of past realities (for example, slavery, “Jim Crow” laws, lynchings, cross burnings, segregated education, employment, business, governmental institutions, and more), racism continues in many forms.

While some of these conditions continue today on a de facto basis, Batts lists these “new forms” as:

1. “Dysfunctional Rescuing”, where white people “help” people of color in a condescending way believing they can’t help themselves

2. “Blaming the Victims” of systemic oppression for the oppression itself

3. “Avoidance of Contact” where white people self-segregate in their personal and professional lives from people of color and where white people show little interest in learning about the cultures of communities of color 

4. “Denial of Cultural Differences,” that notion of “color blindness” which minimizes the cultural and behavioral difference among people, which simply mask discomfort with racialized differences.

5. “Denial of Political Significance of Differences” in which white people deny the profound impact of the social, political, and economic realities of the lives of people of color.

I add to the list of conditions that perpetuate systemic racism the concept of stereotyping. A stereotype is an oversimplified or misinformed perception, opinion, attitude, judgment, or image of a person or a group of people held in common by members of other groups. Originally referring to the process of making type from a metal mold in printing, social stereotypes can be viewed as molds of regular and invariable patterns of evaluation on others.

With stereotypes, people tend to overlook all other characteristics of the group. Stereotypes of out-group members by in-group members depersonalize them, in effect seeing them largely as members of a group and not as individuals with unique and distinctive qualities and attributes. This often results in the tendency to diminish the humanity of out-group members, relegating them to the category of “other.”

Individuals sometimes use stereotypes to justify continued marginalization and subjugation of members of that group. In this sense, stereotypes conform to the literal meaning of the word “prejudice,” which is a prejudgment, derived from the Latin praejudicium.

Restricting education

The United States is the only nation to have forbidden education to those it has enslaved. Except for imposing Christian conversion through religious instruction, legislators enacted laws making educating enslaved people a crime in most Southern states.  

Following an enslaved people’s uprising led by abolitionist Nat Turner in 1831, some states extended the education ban to free Black people as well.

Slavers identified literacy as a direct threat to the institution of slavery and their economic dependency on the labor it provided. An 1831 North Carolina law stated in part: “Teaching slaves to read and write, tends to excite dissatisfaction in their minds, and to produce insurrection and rebellion.”

The Code of Virginia of 1849 was passed to prevent enslaved persons from assembling for religious or educational purposes, as legislators believed that education would lead to uprisings.   

If enslaved people developed literacy, they would be able to read the writings of abolitionists, for example, about attempts to help people escape to the North, or about the 1791-1804 slave revolution in Haiti, and the end of slavery in 1833 in the British Empire.   

As stated by Washington, D.C. lawyer and clerk of the US Supreme Court,  Elias B. Caldwell: “The more you improve the condition of these people, the more you cultivate their minds, the more miserable you make them, in their present state,” he argued. “You give them a higher relish for those privileges which they can never attain, and turn what we intend for a blessing [slavery] into a curse. No, if they must remain in their present situation, keep them in the lowest state of degradation and ignorance. The nearer you bring them to the condition of brutes, the better chance do you give them of possessing their apathy.”

With the end of slavery, the legal exclusion of education to formerly enslaved people, their children, and their descendants did not come to an end. Throughout the Jim Crow era and during the next several decades up to the present day, Black people have faced de jure and then de facto segregation, underfunded schools, implicit bias from educators and school administrators, and public sentiments ripe with myths and stereotypes regarding the intellectual capacities of the minds of those with African heritage. This way of thinking also applied to Latinx, indigenous, and Asian people in the United States.

Following the Revolutionary War, leaders like Thomas Jefferson called for state-supported and mandated public education, believing that the very survival of the new Republic depended on an educated populace.

Jefferson advocated for a three-year publicly supported education for all white children, but no such guarantees were to be extended to children of enslaved Africans. In addition, he argued for advanced education provided to a select few white males and not females.

As Jefferson wrote in 1782, some “geniuses will be raked from the rubbish.” He included all enslaved Africans as an integral part of that pile of rubbish.

How ironic that today several states are either proposing or have passed laws prohibiting teaching about slavery and other aspects of U.S. history that are not particularly flattering.

Republican Governor Greg Abbott of Texas signed what many are calling an “anti-Critical Race Theory” act into law, which seriously restricts what educators may teach in public school history and civics courses throughout the state.

These states, largely with Republican-controlled legislatures, are weaponizing the teaching of history to excite their base with the scare tactic that the teaching of “Critical Race Theory” will make white students feel bad about themselves and will result in Black students hating the United States.

Cultural and social capital

French sociologist, anthropologist, and philosopher Pierre Bourdieu distinguishes between material wealth and the cultural assets of a particular socioeconomic class. He asserts that the culture adds wealth to the higher classes.  

What he terms “cultural capital” represents the collection of non-economic forces, such as family background, social class, varying investments in and commitments to education, resources, etc. that influence academic and career success. These include the non-financial social assets that promote social mobility beyond economic means, referring to attitudes, knowledge, intellect, values, languages, style of speech and dress, physical appearance, and abilities of primarily the middle classes. Schools often devalue the cultures of the working classes.

Bourdieu identifies “social capital” as “the sum of the resources, actual or virtual, that accrue to an individual or a group by virtue of possessing a durable network of more or less institutionalized relationships of mutual acquaintance and recognition.”

In other words, it’s not what you know as much as who you know in your “durable networks” that can give you higher or lower standing. Again, the upper classes are richer in social capital.

The majority of the Supreme Court certainly did not consider issues of cultural and social capital in its decision to kill Affirmative Action.

The myth of meritocracy

From the time of our birth and throughout our lives, society feeds and continually refeeds us the Pablum of meritocracy until it becomes inimically ingrained into our nervous systems.

The story goes something like this: For those of us living in the United States, it matters not from which station of life we came. It matters not about our backgrounds and social or personal identities. We each have been born into a system that guarantees equal and equitable access to opportunities for success.

Success is ours through hard work, study, ambition, and by deferring gratification to later in our lives. We will succeed if we “keep our nose stuck to the grindstone” (ouch!) and “pull ourselves up by our bootstraps” (somehow balancing without falling over on our faces).  

This concept of “meritocracy” is founded on “personal responsibility,” and the idea that those who do not achieve success must accept responsibility for their failures.

Maybe they did not try hard enough. Maybe they failed to scale any barriers that could have been placed in their way because they did not have enough willpower, self-control, fortitude, intelligence, or character – or because they simply made bad choices.

Capitalism stands as a system based on the creation of capital that supports the exponential accumulation of wealth by the capital class generated by the labor of the working class. Those without substantial capital are forced within this system to run throughout their lives on a hamster wheel trying to get ahead, but most never reach a successful conclusion.

Ruling class hegemony dictates that in this “exceptional” nation, everyone can succeed if they possess the qualities of hard work, ambition, and personal responsibility.

This theory of “meritocracy,” however, is a myth, a lie, a fraud, as is the theory and practice of “trickle-down economics” in which the owning class trickles down some of its gigantic wealth and compassion to the laborers in their companies. In reality, only the scraps trickle down.

“Success,” in financial terms, has more to do with family inheritance, social and cultural capital, and, of course, exhibiting certain social identities in terms of socioeconomic background and race.

While economic disparities plague all nations across the planet, nowhere are these disparities more extreme than in the United States.  While of course we are all accountable and liable for our actions, what impact do the systemic conditions of our nation have on personal success?

While the Supreme Court terminated Affirmative Action, it did not, likewise, end the practice of “legacy admissions” in which many major colleges and universities give preferential treatment in admissions to the children of alumni parents of those universities, especially those who have donated large endowments.

The U.S. Supreme Court’s ultra-conservative majority, by terminating Affirmative Action in higher education, has turned back the clock in our nation’s fight to come to terms with its legacy of racism. But we the people, with collective action through progressive coalitions can lead the way toward real justice without the “justices.”