Affirmative Action Survives But Not For Long

This is now illegal, FYI.

Protesting at the Supreme Court is now illegal, FYI.

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. 

The Dharun Ravi Verdict

30 days in jail. No deportation.

I’m thankful that a tragedy was not confounded by yet another tragedy.

The media seems to be hell-bent on portraying this as a lenient decision where the perpetrator has expressed no remorse. It’s nothing short of racism. There’s really nothing else I have to say about it.

I’m sensitive to bad room-mate situations, having been subjected to abusive, homophobic and transphobic remarks in my own home. No one deserves to be subjected to that. But no one should be subjected to 10 years in jail and deportation as a punishment for behavior that would have otherwise gone unpunished if the victim wasn’t a white cisgender boy.

I’d also ask the people sending me abusive comments to reflect on their own hateful behavior.

Good day.

Credentials

“Hi, do you have credentials to live here?”

I looked up at him. Average-size, middle-aged, white male. Probably straight.

“Excuse me?”

Now women usually say “excuse me” not because we didn’t hear you correctly the first time. We say “excuse me” generally to give you a chance to correct what you just said so we can un-hear it and go about our day.

“Yes.” He shows me a piece of paper that means nothing to me. “Do you have the right to be here right now?”

I stared at him incredulously. I was standing in the lobby of my brand new apartment, waiting for the receptionist to come back from lunch so I could borrow a dolly to finish moving some packages.

“Don’t look offended. It’s just a question,” he pressed on.

I made no effort to show him my keys or reveal my identity. My mind hunted for a response. Should I punch him? Should I walk away? Should I engage in a conversation? Did I really have credentials to live here? Only time would answer that.

“Yes, I have credentials to live here. Now, if you will excuse me…”

A Final Note On #LGBTCIR

I had a busy week and several mentions in LGBT media after the New York drama that I have put squarely behind me.

Of course, I anticipated differing reactions to what I had to say in The Advocate (Universal Stagnation and Immigration Reform Conundrum) and Ambiente. But some people are uninterested in recognizing the need to work together or don’t see the helping hand extended towards trying to create more inclusive platforms. No, they would rather stick to their guns and start launching attacks.

I fought for same-sex binational couples bill (UAFA) inclusion in CIR and I was told by pro-migrant people to “get my priorities straight” and stop supporting an issue that might kill a bill of much value to immigrant communities. Nevermind, that my actual issues with any potential CIR legislation have nothing to do with LGBT issues.

Then I was told by angry and resentful Uniting American Families Act activists that they don’t see why these “illegal immigrants” deserve a pathway to citizenship before them. Of course it always comes down to them and their families, and not larger macroeconomic forces created by a neo-liberal order, and a broken immigration system that never provided a legal pathway for most people of color immigrants here to begin with.

Would you even understand why people leave their homes, uproot their whole lives, to move thousands of miles to a foreign place, just to start over? That question plagues me daily.

It’s almost utterly useless trying to have these conversations with people who are not both part of the undocumented and queer communities because they tend to see themselves as being “shafted” and immediately fight for the leftover pieces of the pie. They just do not get that we need to take over the bakery and fix it so that everyone can have as much pie as they want. Period.

And if you happen to be queer and whine about how CIR does not include your family but includes those “illegal immigrants,” I no longer mind your exclusion. Why should we bend over backwards to pull you up when you have absolutely no courtesy or knowledge of our unique immigration struggles?

I don’t see why it is so hard to see that the system is broken for everyone— that all our friends, communities need help and support instead of nit-picking who needs it more than someone else.

So ultimately, what’s the point of trying to reach out and build bridges when they end up tearing me in the middle? What possible gain do I have from any of this? Nada. It’s just painful to have people tear one part of me over another. You know what: from now on, you can’t have either, whatever that means. I have more important things to do than having to defend one part of my identity over another.

I won’t give any roadmaps or strategies. Fight your own battles without lashing out at my communities and me just because it is convenient and we are easier targets than a failed system.

Moron of the Week: Sheriff Joe Arpaio

The idea that this guy could be a Pulitzer Prize winner somewhat explains America’s deficit in education.

Ha. Kidding.
What kind of person gets a little gun clipped to her or his tie?

Arpaio is infamous for abusing prisoners, strutting on television, and arresting Latinos on flimsy pretexts.

A whopping 2,700 lawsuits have been filed against him, including numerous allegations of civil rights violations. And he is finally getting the attention he deserves though it is probably not the attention that he wants.

The East Valley Tribune (Gabrielson and Giblin) won a Pulitzer for investigative journalism and reporting on Sheriff Joe Arpaio and the Maricopa County Sheriff’s Office’s illegal immigration efforts.

His reign of terror over anyone who looks different, might be coming to an end.