The conservative majority on the US Supreme Court has ruled that colleges and universities may not “consider race” in their admissions policies, effectively demolishing affirmative action. While the Supreme Court tries to disguise its decision as a blow against discrimination, it is really another powerful legal shove designed to protect white supremacy. It also puts the reality of much of US “anti-discrimination” law under the spotlight, revealing it for what it is: a mechanism for rationalizing anti-Black racism.
Although a raft of anti-racist legislation was passed by the federal government in the period of Reconstruction immediately following the Civil War, most of those laws were then ignored for almost a century. The federal government could have, but chose not to use these laws to fight the exploitation of Black sharecroppers, the passage of Jim Crow laws by the states, and the rise of the KKK and other white supremacist vigilante groups. It was only the Civil Rights Movement of the 1950’s and the Black Power Movement of the 1960’s that, through mass political action that went far beyond mobilizing to vote for this or that candidate, forced the US government to effect formal changes to federal and state laws that protected race segregation.
These changes consisted in part of reviving the post-Civil War laws that, on paper, had given every person “the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” But they predominantly involved Supreme Court decisions, such as Brown v. Board of Education (barring legal segregation in public education) and Loving v. Virginia (ending legal restrictions on inter-racial marriage), and new federal laws such as the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Civil Rights Act of 1968 (and its constituent Fair Housing Act).
However, the legal concessions to civil rights by the judicial and legislative branches of the federal government took place at the same time that the executive branch — in particular, President Nixon and the FBI, successfully shattered the Black Power Movement with the illegal infiltration and destruction of its political organizations and the assassination or incarceration of much of its political leadership through the COINTELPRO program. Legal challenges to civil rights reforms from the openly racist wing of the US ruling class began almost immediately upon the successful weakening of the Black liberation movement.
As a result, the period from the 1970’s to the present has been characterized by constant weakening of laws that challenge racism. In particular, the weakening has taken the form of attacks chipping away at voting rights and affirmative action by the Supreme Court.
It’s important to recognize that the reason attacks on voting rights and affirmative action have been so relentless since the passage of the major civil rights laws in the 1960’s is that they proceed (generally) from the assumption that the purpose of civil rights laws is to undermine and ultimately demolish racism. As important and valuable as they are, most of the other legislative reforms of that era are not, strictly speaking, anti-racist but rather anti-discrimination. This is an aspect of the problem of legal efforts to undermine white supremacy in the US that is rarely addressed.
To cite one example, the portion of the Civil Rights Act of 1964 often referred to as Title VII makes it illegal for an employer to make employment decisions based on race or sex. Unlike Section 1981, the Reconstruction-era statute I described above that was intended to guarantee to every resident of the US the same rights “enjoyed by white citizens,” Title VII makes any discrimination based on “race” illegal. As interpreted by the courts, that means that in many instances it can be as illegal for an employer to favor a Black worker over a white worker as it is to favor a white worker over a Black worker. While there are ways in which Title VII’s protection can be important in providing legal protection to Black people and other people of color, the law does not presume the existence of centuries of white supremacist exploitation of Black people. For example, to prove race discrimination in employment, it would not be enough to show that the Black applicant was just as qualified as their white counterpart who got the job; the Black worker would have to show they were more qualified. That’s why I say it is an “anti-discrimination” law, not an “anti-racist” law.
Affirmative action in college admissions, on the other hand, at least permits (or it did permit before the latest Supreme Court ruling) consideration of the history of white supremacy. When considering two equally qualified candidates, a college could decide that admitting a Black student instead of a white student would help to desegregate the student body or foster diversity. (Keeping in mind, of course, the Big Lie told by opponents of affirmative action that it allows a less-qualified Black student to be admitted over a more-qualified white student.) The existence of affirmative action as a policy meant that student activists knew a college could do more to change the racial make-up of a campus, and that enhanced their power to pressure administrations to effect such changes.
Of course, that is the goal of enemies of affirmative action — including the Supreme Court majority. They want to ensure that colleges can turn away Black applicants who are merely “as good as” white applicants, and limit the ability of Black and anti-racist groups to pressure colleges to do more. Predominantly white college admissions panels have free reign to admit students based on “legacy” (a family member attended or gave money to a college) or any other factor they choose. Breaking down white supremacy in colleges and universities is the one criteria that cannot be used.
Republished with minor edits from the author’s blog, Tell No Lies. Claim No Easy Victories… We thank the author for his kind open-ended offer of republication.
