How Supreme Court rulings encourage racial discrimination
Recent events have driven home two stark truths: racism continues to percolate throughout our society and conservative Supreme Court justices appear determined to prevent us from doing anything about it.
The odious racism of outlaw Nevada rancher Cliven Bundy and Los Angeles Clippers owner Donald Sterling is painfully juxtaposed with the Supreme Court’s decision in Schuette v. BAMN, which reinforces the message that minority interests suffer in the hands of a majority of the court.
In giving Michigan’s white majority free rein to invalidate the use of lawful affirmative action by the state’s universities, the court continues its assault on remedies to redress the enduring effects of America’s racial caste system. This string of Roberts Court decisions threatens to undermine the foundation of anti-discrimination laws.
In Schuette, the court upheld a Michigan referendum that changed the state constitution to bar consideration of race in decision-making, including admission to state colleges and universities. White voters voted overwhelmingly to deprive minorities of a benefit that was lawful and that the state’s universities wished to continue. Minority voters overwhelmingly opposed it. Yet their strong opposition did not matter because the referendum process is designed to trample minority interests.
The decision’s most revealing aspect, however, was the spat between Justice Sonia Sotomayor and a thin-skinned Chief Justice John Roberts. Sotomayor wrote a long, biting dissent in which she took on the chief justice’s inane comment in his 2007 decision invalidating voluntary efforts to desegregate schools. “The way to stop discrimination on the basis of race,” Roberts opined, “is to stop discriminating on the basis of race.”
Sotomayor insisted a better approach would be to speak openly about race and address it. Obviously stung by the words of the ‘wise Latina justice,’ Roberts responded — without any apparent irony — by lecturing her on what victims of discrimination truly feel.
Sotomayor’s dissent blew the whistle on the Roberts Court’s alarming direction on matters of race. In a series of decisions made since Roberts became chief justice and Justice Samuel Alito replaced Justice Sandra Day O’Connor, the court has marched openly toward elimination of meaningful remedies for structural racism, while undermining basic protections against discrimination for minorities.
Roberts’ approach, Attorney General Eric Holder said Saturday, “presupposes that racial discrimination is at sufficiently low ebb that it doesn’t need to be actively confronted.” Holder rejected that misperception and urged, “We must continue to take account of racial inequality, especially in its less obvious forms, and actively discuss ways to combat it.”
In Schuette, a court of appeals had struck down the anti-affirmative action referendum because it restructured the political process to make it more difficult for racial minorities to obtain a benefit. Before the referendum, minorities only needed to persuade the state university’s board of regents to pursue racially inclusive admissions. After the referendum, however, they would have to amend the state constitution to do so.
The Supreme Court would have none of it, however. Justice Anthony Kennedy dissected prior cases that would have invalidated the referendum in a manner that would ensure their future irrelevance and allowed the referendum to stand. Justices Antonin Scalia and Clarence Thomas, predictably the panel’s most conservative, didn’t bother with the nicety of dissecting precedents. They simply would have overruled it.
Contrast the court’s respect for the will of the people opposing affirmative action in Schuette with its 2007 ruling that Seattle and Louisville could not voluntarily take race into account as a means of desegregating their school systems — despite each city’s sordid history of school segregation. The court favored the claims of disgruntled white parents and their children over the interests of minorities and the school system in desegregation.
Similarly last term, the court struck down the University of Texas’ consideration of race in its admissions program. The university’s effort to achieve a diverse learning environment had been modeled on guidance issued by the Supreme Court in 2003 — before Roberts and Alito joined the panel. Yet the high court ruled in favor of the white plaintiff, Abigail Fisher, though the university demonstrated that her qualifications were so weak that she would not have been admitted, even if she had been a full recipient of the consideration of race that she challenged.
It was enough for the court that she was white and alleged that the university considered race in its admission process. That’s all she needed to do to become the presumptive winner. By contrast, a minority plaintiff alleging discrimination would have to prove that the university intentionally discriminated against her because of her race and that she suffered some harm from the discrimination.
Consider, when Michigan voters decided to strip minorities of the benefit of affirmative action, the Supreme Court deferred to the will of the people. But when Seattle, Louisville and Texas wanted to extend that benefit to minorities, somehow it was not theirs to extend.
In 2009, the court’s conservative wing set its sights on Title VII of the Civil Rights Act of 1964, which prohibits employment practices that harm individuals on the basis of race. In Ricci v. DeStefano, the court ruled in favor of white and Latino firefighters, who alleged that New Haven, Connecticut, discriminated by failing to promote them based on a test that would have prevented promotion of any African-Americans. The city believed promoting the men would expose them to lawsuits under Title VII.
In favoring the claims of the white plaintiffs over the interests of minority firefighters, the court intimated — and Scalia stated explicitly — that Title VII’s ban on practices that produce racially discriminatory effects may violate the Equal Protection Clause of the 14th Amendment. Title VII’s prohibition of policies and practices that disproportionately harm people on the basis of race — often referred to as the effects test — was recognized by the court more than 50 years ago and was written by Congress into the language of Title VII in 1991.
The argument that this statutory provision is unconstitutional has devastating implications for all anti-discrimination law. It is based on the premise that if employers know that they may be liable for employment discrimination because their hiring practices produce a disparate effect, they will become race-conscious in hiring — keeping one eye on their workforces’ racial composition and hire accordingly. In the stilted view of the court’s conservative wing, this thinking about race is the very evil that the Equal Protection Clause prohibits.
Taken to its logical conclusion, this reasoning would undermine many claims of intentional discrimination. The court has established that a racial disparity is relevant to — though not sufficient for — a finding of intentional discrimination.
Indeed, a racial disparity is often the starting point for establishing a claim of intentional discrimination based on employment practices that affect large numbers of victims. According to the reasoning of the conservative justices, however, employers subject to Title VII’s prohibition against intentional discrimination should also fear the creation of a racial disparity and take race into account when hiring. The obvious ways to avoid that possibility are to declare racial disparities irrelevant or to limit prohibitions against intentional discrimination — either of which would weaken protections against discrimination.
Similarly, the court has twice agreed to review decisions that the Fair Housing Act is violated by practices that disproportionately harm minorities. Both cases have settled before the court could consider them, in part because it is widely expected that the court would narrow the Fair Housing Act to say that a showing of a discriminatory effect is insufficient and to require proof of intentional discrimination. In doing so, the court would act contrary to the interpretation of the act by the 11 courts of appeals that have considered the issue, the regulatory interpretation of the statute by the Department of Housing and Urban Development and the interests of minorities.
The Supreme Court also issued a dramatic blow against minority voting rights last term by striking down the formula for determining which jurisdictions had to submit changes in voting procedures for federal approval before they could go into effect. In Shelby County v. Holder, the court’s conservative wing brushed aside the 15,000-page legislative record that Congress had compiled in 2006 while reauthorizing the law.
After many hearings and studies, Congress had concluded there was still substantial voting discrimination in these jurisdictions, and that preclearance of voting changes was still necessary to protect minority voters. Yet the chief justice, speaking for the court’s five conservatives, simply substituted his judgment for that of Congress.
Roberts wrote that conditions have improved and Congress was wrong in concluding from its hearings and studies that the federal oversight formula was still justified. The court did so despite the text of the 15th Amendment, which explicitly grants Congress authority to enforce the prohibition against discrimination in voting on the basis of race.
One rationale offered for attacking preclearance was that it was an extraordinary remedy justified only because recalcitrant state and local officials could stay one step ahead of case-by-case litigation against discriminatory voting practices. Opponents of preclearance argued there was insufficient evidence that Section 2 of the Voting Rights Act — which authorizes legal action against practices that result in discrimination — was inadequate.
Not surprisingly, influential legal conservatives who backed the assault on preclearance have now turned their focus to Section 2 itself. They argue that under the 14th and 15th Amendments, Congress can only prohibit the actions of jurisdictions that are intended to discriminate and cannot hold them accountable simply because practices produce discriminatory results.
Roberts, as a young lawyer in the Reagan administration, had opposed passage of the existing statute. He and other conservatives on the court are likely to be sympathetic when an appropriate case reaches them.
Most recently, the conservative legal movement has launched an attack on the Matthew Shepard/James Byrd Hate Crime Act, which, among other things, makes it a crime to use violence against someone because of race. The bill was passed in reaction to the 1998 mutilation and killing of Shepard, a gay college student in Wyoming, and Byrd, an African-American in Texas. The law prohibiting racially motivated violence is the purest form of protection for racial minorities: Racial violence was the foundation of slavery and an essential component in the terror of Jim Crow.
Yet the legal right-wing now argues that the hate-crime law is unconstitutional following Shelby County — because Congress did not make sufficient findings that states were failing to prosecute racially motivated violence. They want the court to do what it did in Shelby County: Substitute its own conclusion about the need to combat racially motivated violence at the federal level for that of Congress.
Three courts of appeals have now upheld the constitutionality of the act. In the most recent case, however, Fifth Circuit Judge Jennifer Elrod, a conservative appointed by President George W. Bush, wrote a special concurrence obviously designed to encourage the Supreme Court to review the case. The high court’s acceptance of that invitation would not bode well for racial justice.
The ideology of the court’s conservatives rests on a tortured denial that racial discrimination remains a serious problem. America’s biggest racial problem, the argument goes, is that people still insist on thinking and talking about race. As Sotomayor’s powerful dissent in Schuette demonstrated, we cannot wish racism away. Rather we must talk about it and address it head on, both in its overt and more subtle forms.
Bundy’s suggestion that African-Americans were better off as slaves and Sterling’s insistence that his companion stop hanging out at Clippers games with African-Americans drive home the absurdity of the suggestion that it is time to discard our tools for fighting discrimination and its effects.
Sadly, Bundy’s assertions are not far from the musings of Thomas, the court’s most right-wing and only African-American justice, who recently stated: “My sadness is that we are probably today more race-and difference-conscious than I was in the 1960s, when I went to school. To my knowledge, I was the first black kid in Savannah, Georgia, to go to a white school. Rarely did the issue of race come up.”
If only we can stop talking about race, that argument suggests, perhaps we can return to the racial harmony of 1960s Georgia.
ILLUSTRATION (TOP): Matt Mahurin.
PHOTO (INSERT 1): Supreme Court building in Washington. Reuters/Files
PHOTO (Insert 2): Chief Justice John Roberts listens to arguments from George Washington University law students at a moot court in Washington, February 9, 2006. REUTERS/Jim Young
PHOTO (INSERT 2): Supreme Court nominee Judge Sonia Sotomayor answers questions during her final day of testimony at her Senate Judiciary Committee confirmation hearings on Capitol Hill in Washington, July 16, 2009. REUTERS/Jason Reed
PHOTO (Insert 3): President Lyndon B. Johnson talking with Martin Luther King Jr. in the White House. Courtesy of LBJ Presidential Library
PHOTO (Insert 4): John Lewis (on right in trench coat) and Hosea Williams (on the left) lead marchers across the Edmund Pettus Bridge, where Lewis was brutally beaten by police, March 7, 1965. REUTERS/Library of Congress/Courtesy Representative John Lewis
PHOTO (Insert 5): Voting rights march in Selma, Alabama, on March 7, 1965. REUTERS/National Park Service