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In California, a bill to revive affirmative action is dead. Mainstream media reports convey that opposition from insurgent Asian Americans groups killed the measure at the last minute. If this is true, then there is much work to be done in Asian American communities about the benefits of affirmative action.
However, it is more likely that the measure was primarily opposed by white voters, and an over-hyped loud minority of Asian American opposition became a convenient scapegoat for lawmakers. After all, more than 75 percent of Asian American support affirmative action programs. Even when Prop 209 was passed by overwhelmingly white voters, Asian Americans were scapegoated for supporting the repeal effort even though 61 percent of Asian Americans voted against the ban. The backlash against Asian-Americans for the latest affirmative action debacle is the same old “divide and conquer” strategy, and we must stop falling for it.
I support affirmative action. I have written at length about the need for affirmative action, as well as why it is constitutional. Contrary to myths, Asian Americans have been hurt by Prop. 209, and projected Asian-American enrollment rates have fallen as a result of Prop 209. Moreover, Asian-Americans do not lead single issue lives. Many Asian-American women and LGBT Asian-Americans directly benefit from affirmative action.
We need to restore affirmative action in California, and we need to stop allowing the white majority to use the increased Asian American enrollment numbers as a way to defend a ban that only they support overwhelmingly.
My heart skipped a few beats today when the Supreme Court vacated and remanded Fisher v. Texas, to the Fifth Circuit, but affirmative action remains the law.
The Justices are so scared of race and racial politics that they said a few words about the compelling interest provided by diversity, and told the Fifth Circuit to apply the criteria set in Bakke v. California (race-based admissions policies should be narrowly tailored) because a showing of good faith by the University of Texas was not enough to overcome impermissible consideration of race. Universities must show there is “no workable race-neutral alternative” to achieving diversity. This anything-but-race approach to achieving a critical mass of diversity means that affirmative action survives, but it is still in a lot of trouble.
Lets make one thing clear. Achieving a race-neutral critical mass of diversity is not a convincing-enough rationale for affirmative action. It will not survive long. I’m not saying diversity is not a compelling government interest but I certainly question how, why and for whom it is important. Three years of law school at a rich, mostly-white private school has me thoroughly convinced that white people gain much more from interactions with people of color than we do from interactions with them. Justice O’ Connor made this point crystal clear in her majority opinion in the last affirmative action case where she praised diversity as a tool for providing legitimacy for government:
In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. (Grutter v. Bollinger)
Because having confidence in the legitimacy of government is a more overriding principle than actually addressing past and present discrimination, diversity becomes the overriding government interest in preserving affirmative action. Heavens forbid that people notice lingering racial segregation in their schools and housing patterns, and wake up to question why 60 years after Brown, we still live in an America so unequal.
The 7-1 remand from Fisher v. Texas has only one dissent: Ginsburg. And she shows again why she’s the only one who understands court-constructed 14th Amendment jurisprudence:
“I remain convinced ‘those that candidly disclose their consideration of race [are] preferable to those that conceal it’ […] ‘Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated.'”
Ginsburg is criticizing the fallacy behind the constitutional jurisprudence that all use of race should be subjected to strict scrutiny in order to be upheld under the Fourteenth Amendment. This strict scrutiny test comes from the Supreme Court decision in Korematsu, where the Court declared that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect” (and then refused to apply the principle to the clearly unconstitutional internment of Japanese Americans). As opposed to Korematsu, affirmative action cases such as Bakke, Grutter and Fisher, do not “curtail the civil rights of a single racial group.” They, much like Brown v. Board of Education, involve the benign use of race to advance a legitimate government interest in tackling the vestiges of past and present discrimination, and promoting diversity. Thus, a strict reading of equal protection jurisprudence requires that strict scrutiny should be limited to “all legal restrictions that curtail the civil rights of a single racial group” as Ginsburg implies in her dissent.
Unfortunately, both benign and invidious uses of race get strict scrutiny. The Court has steadily moved away from encouraging the use of race in cases such as Brown v. Board of Education, to promoting colorblind constitutionalism as the way to guarantee equal protection. Colorblind constitutionalism is the proposition that the U.S. constitution, in treating all races equally, is colorblind. With its legal roots in Justice Harlan’s dissent in Plessy v. Ferguson, color-blindness espouses the questionable principle of race neutrality in a legal system that is constructed to generate and maintain disparity. Colorblind constitutionalism has gained more credence through the rhetoric of a post-racial America, and especially the re-election of President Obama. Supporters of color-blindness contend that we have moved beyond race and race is no longer relevant i.e. Parents Involved in Community Schools v. Seattle School Dist. No. 1 (“[T]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race”). This is deeply problematic, as colorblindness threatens to blind us from the continuing reality of white privilege in American society and the institutional discrimination that persists, including gentrification, white-flight, re-segregation, spirit injury, legacy admits, and even micro-aggressions.
Espousing neutrality and colorblindness in a white supremacist order is not neutral—it is a raincheck for an unequal world. Race neutrality serves to legitimize the current racial order while making sure that systemic discrimination remains undisturbed. While some may argue that colorblindness is a laudable principle, it is in effect, a way to keep the racial pecking order while ignoring the very real impact of racism on everyday lives. Failure to see and acknowledge racial differences makes it difficult to recognize white privilege and systemic racism, and take action to address the impact of these on our lives.
Thus, colorblindness is a vestige of institutionalized racism. Race consciousness policies such as affirmative action are imperative to battling racism, and the benign use of race in order to do so should not rise to the level of strict scrutiny.
Ginsburg could have articulated all of this better, but for now, I’m glad affirmative action is still legal.
Thanks to a 2-1 ruling from the Sixth Circuit, Michigan finally overturned its ban on affirmative ban. Ward Connerly is surely seething. I hope California is next.
Opponents of affirmative action, including Democratic Senator James Webb, contend that the practice is unfair, that it leads to preferential treatment, that it relies on quotas, and that it causes reverse discrimination. But in fact, affirmative action is one of the most effective tools for redressing the imbalances caused by our nation’s long-standing discrimination against people of color and women, and for leveling what has been an uneven field for the entirety of our nation’s existence.
But we need affirmative action more than ever. A centuries-long legacy of racist, sexist, discriminatory habits, customs and attitudes has not dissipated in the fifty years since the Civil Rights era. Avenues of opportunity for those previously excluded remain far too narrow. Despite a black President in the White House, black men are hardest hit by unemployment. Latino unemployment has reached record levels. Minority families still earn much less than white families. Workers of color are still concentrated in less well-paying, unskilled sectors. The black middle class is shrinking while the black under-class has tripled. This is not the time to abandon programs seeking to redress systemic racial and gender discrimination.
Barriers to equality also remain for women. (White) women still earn seventy seven cents to each dollar earned by men. Gender-segregation prevails in many sectors, barring women from high-wage earning opportunities. In addition, sexism and racism create a particularly difficult double burden for women of color. Those who decry affirmative action for race-based preferences and reverse discrimination should take note that such programs have actually benefited white women more than racial and ethnic minorities.
There exists widespread confusion about what constitutes affirmative action and what does not. Much of this confusion can be laid at the doorstep of the anti-affirmative action movement which has deliberately distorted the goals of this legal remedy. Affirmative action programs do not grant preferences based on race nor do they create quotas. Affirmative action is an instrument of inclusion, designed to eliminate barriers to equal treatment. It serves as a means of bringing all Americans into society’s mainstream as equal competitors in the race of life.
As President Lyndon Johnson argued in an eloquent speech trumpeting the program, “you do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, ‘you are free to compete with all the others,’ and still justly believe you have been completely fair.” Furthermore, the argument that affirmative action is “unfair” assumes that there is a standard of fairness that has been the province of women or of people of color. Not even the most optimistic or misguided observer of our nation’s history would take that argument in good faith.
Fairness requires ending biased practices, not perpetuating them, and that includes ending the unjust advantages traditionally enjoyed by whites and white men, who are born with a racial privilege. Restructuring a discriminatory status quo to create a nondiscriminatory environment isn’t “reverse discrimination,” but it may feel that way because something is being lost: White people are losing the favoritism they so long enjoyed in a system that discriminated on the basis of color and sex.
An opinion survey shows that most Americans still support the goal of equal opportunity in employment and education. A recent Pew poll showed that while the public decries preferential treatment, 70 percent of Americans support “affirmative action programs to help blacks, women and other minorities get better jobs and education.” And according to Harvard professor Randall Kennedy, one of the biggest triumphs of liberalism is that affirmative action has survived by entrenching the rationale for diversity such that even the right-wing has some value for Clarence Thomas and Michael Steele.
In an ideal society, we certainly would not need programs like affirmative action to redress past and present discrimination. If there aren’t enough chairs in a classroom to accommodate all students, ideally, we should be able to bring in another chair. But as a society, we are certainly not there yet.
African-Americans and Latinos are said to receive undeserved special privileges, when we know that hardly a single white person would be willing to trade places with them today. In the status quo, minorities are still targeted because of the color of their skin or gender or sexual orientation. If we acknowledge the war on drugs, which disproportionately targets young men of color, the wave of anti-immigrant laws, or even the antiquated notions of gender, it is abundantly clear that the solid legal protection from discrimination is one of our only hopes for ensuring the doors of opportunity are open to all.