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October 16, 2013

The Terrible Fall of the Civil Rights Movement

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By Richard D. Kahlenberg

In attending yesterday's oral argument in a case contesting Michigan's affirmative action ban, I was struck by the enormous evolution of the civil rights movement away from some of its original principles.

At issue in Schuette v. Coalition to Defend Affirmative Action was the legality of a state constitutional amendment, adopted by Michigan voters in 2006, by a 58-42% margin, which states, in part, that public colleges and universities "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin." 

Arguing that a referendum that bans racial discrimination and preferences is itself a violation of the U.S. Constitution's equal protection clause was always a stretch. Neal Katyal, a former solicitor general in the Clinton administration told USA Today that the lower court ruling striking down the referendum was "an indefensible decision."  The liberal Slate writer Emily Bazelon called Schuette "the affirmative action case liberals deserve to lose."  And the Obama administration, which intervened in last term's affirmative action case of Fisher v. University of Texas, did not participate in the Schuette case.

The oral argument in the case was sad to watch as it underlined the decline of this nation's heroic civil rights movement.  At least parts of that movement have shifted from nondiscrimination to preference, from universality to particularity, and from a deep and abiding concern about class inequality to an almost dismissive attitude about its salience.

From Equal Treatment to Preferences.

The oral argument took place in the same Supreme Court building where the giants of the civil rights movement argued Brown v. Board of Education. In Brown, civil rights lawyers declared "that the Constitution is color blind is our dedicated belief."

Now the argument, advanced by the ACLU's Mark Rosenbaum, was still ostensibly about equality but in a very different form.  Outside the courtroom, Rosenbaum declaimed, "We fought a civil war to say all races should be treated equally," but instead of taking this in a straightforward sense to mean that admissions officers should treat races equally, Rosenbaum meant, instead, we should all have the equal right to fight for preferences.  Just as alumni can push for special preferences for their children, so should minority parents, Rosenbaum suggested.  It did not seem to occur to him that another alternative would be to make both skin color and legacy status irrelevant to who gets ahead.

From Civil Rights for All to Civil Rights for Some.

One of the great contributions of the civil rights movement was its strong commitment to civil rights for all Americans.  The Civil Rights Act outlawed racial discrimination toward anyone, of any race; and the Equal Protection Clause of the Constitution also was written in universal terms.

Even affirmative action has been justified as a program with universal benefits; black and Latino students are given additional opportunities, but white and Asian students learn more in integrated environments so everyone benefits. 

But yesterday afternoon, Shanta Driver of the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), articulated a very different vision.  The purpose of the 14th amendment, she said, "is to protect minority rights against a white majority."  Discrimination, she said, is determined "by power, by who has privilege in this society."  Asked by Justice Antonin Scalia to cite a single case in which the Supreme Court had taken this particularistic view of the 14th amendment, she conceded, "No case of yours."

A Shrinking Concern about Economic Inequality.

Perhaps most troubling was the attitude of civil rights lawyers and at least one liberal Supreme Court justice on the importance of addressing class inequality.  This was once a hallmark of civil rights movement.   Dr. Martin Luther King, Jr. was always a strong proponent of labor unions and toward the end of his life launched a Poor People's Campaign, which he called his "last, greatest dream."  More recently, John Brittain, the former chief counsel of the Lawyers' Committee for Civil Rights, pointed out that legacy preferences for the children of alumni were unfair to poor people as well as to people of color. 

John J. Bursch, the Solicitor General for the state of Michigan brought up the class and legacy issues in response to Justice Sonya Sotomayor's claim that the affirmative action ban had segregated the University of Michigan.

Bursch noted that, in fact, the initial drop of under-represented minorities was minimal (from 10.75 percent to 10.25 percent), and that more severe drops came after Michigan, following U.S. Census guidelines, began allowing students to check multiple boxes for race and ethnicity.  (The federal rules, according to one study of 31 colleges, meant that the proportion of students classified as black would decline from 5.3 percent to 4.1 percent, without any changes in racial preference policies.)

But Bursch's central response was that "there are other things that the University of Michigan could be doing to achieve diversity in race-neutral ways."  They could eliminate legacy preferences, he noted.  And, citing an article I wrote for the Wall Street Journal, Bursch noted that Michigan could do more to admit low-income students of all races.  Busch cited the article's data showing that the number of students eligible for Pell grants at the University of Michigan at Ann Arbor is one half that at other universities employing race-neutral strategies such as UC Berkeley and the University of Texas at Austin. 

Astoundingly, Justice Sotomayor made an ad-lib defense of legacy preference.  "It's always wonderful for minorities that they finally get in, they finally have children and now you're going to do away [with] that preference for them.  It seems the game posts keep changing every few years for minorities."

As Brittain's research found, however, even with affirmative action, it is whites who disproportionately benefit from alumni preferences.  And shouldn't liberal justices and civil rights attorneys be arguing for an abolition of this form of affirmative action for the rich?  Outside the court room, Rosenbaum claimed Michigan administrators "are breaking their backs trying" to find race-neutral means to boost minority enrollment, even though the data show that Michigan's 15% Pell numbers are well below that of numerous other highly competitive universities.

How, indeed, have we come to a point where civil rights lawyers and liberal justices, of all people, make apologies for wealthy universities that fail to make room for low-income students and give preferences to the already privileged children of alumni? 

Richard D. Kahlenberg is a senior fellow at the Century Foundation in Washington, D.C.

(Photo Credit: Christian Science Monitor, Joshua Roberts/Reuters)



Comments (7)

DonM:

I go to work every day. I don't get a break on my taxes because of my race. I don't get a special lane on the road to work because of my race. I don't get lower prices at the market because of my race. I don't get free medical care. I went to to 4 colleges on the way to my first degree, and got two degrees afterwards. I home school my two black children to protect them from the indoctrination of the public school system, and they are doing college level work in their favorite subjects.

The answer is to shut down all government schools. The people who want education will find it. The people who don't care, shouldn't pay for it. If you want to pay for another's education, you will not be stopped.

rosignol:

"...race-neutral means to boost minority enrollment..."

If the means have disparate effects on different ethnic groups, how can it be race-neutral?

bingobill:

Once the civil rights movement became a cash cow for victim status fraud and 'Rainbow Coalition' style protection rackets all hope was lost. Eternal victim hood is now intertwined with academia both politically and financially. How do you solve it? Just as the left screamed to 'get money out of politics' so now shall libertarians fight to defund victim hood.
If anger pays people will grow rich on hate.

George Leef:

Disappointing but inevitable that Michigan's solicitor general would bow to the "diversity" gods. Whether or not students receive a good education has nothing whatsoever to do with the racial mixture of the student body; nor the socio-economic mixture, religious mixture, party-affiliation mixture, or anything else. Each person is unique in many respects and the sooner America gets over the obsession with counting the numbers of people in various boxes, the better.

kwo:

Have there been any cases of rejected minority students suing universities over legacy admission policies as violations of the 14th?

Harcourt F Mudd:

The stunner is not that a liberal justice, rather ungrateful for the opportunities she received here, agrees. Or that another is sympathetic, and believes the 200 year US Constitution is a poor model for developing countries.

The stunner is not even that some believe that others must be disenfranchised because of the color of their skin. The US has always had a small group of factious types, soaked in european tribalism or communism. For them, individual merit is permanently irrelevant in endless wars over skin color, religion, and class.

The stunner is that 8 circuit judges, appallingly ignorant of history, the Constitution, and bereft of common sense, fashionably agreed that banning racial preferences was a racial preference. And implicitly, that without preferences, blacks cannot compete. Constitutional guarantees must be denied to some of a skin color to legally prefer others.

It was comical to watch the California circuit judge that held, some years ago, the Pledge of allegiance unconstitutional. But its alarming that 8 circuit judges can decide that banning racial discrimination is discriminatory.

But what else can be expected when US history is presented in schools as no more than the sum of discrimination against blacks, domestic internment and a-bombing abroad of the japanese, exploitation of children by the "rich," and "oppression" of indians and women?

What else can be expected when schools endorse racial preferences all the way up to law schools? I remember trying to simply look at my law school after I had been accepted in the 70's. "Not today," I was told. The school had been set aside for special classes on how to take exams, how to deal with classes and so on. Naively I said that would be a real help to me-my father had died when I was 16 and there had never been a lawyer in my family. Amused, the man at the door tried to make clear that it was for minorities only. It took a minute for me to grasp.

So here we are, almost 50 years after Bakke, still justifying discriminating against some based on their skin color, to prefer others based on their skin color, and insisting its not discrimination.

Mike43:

For years in Texas, our race neutral approach was called the Texas Ten Percent rule.

Graduate in the top 10% of your high school class, and University of Texas-Austin was pretty much an open enrollment for you.

Cut nicely across income barriers, as well

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