The End of Affirmative Action in Education? Reactionary Judges Get to Decide

The New York Times has a recent article by Adam Liptak suggesting that the right-wing, white-oriented majority on the U.S. Supreme Court may be poised to knock down all targeted college and university efforts to diversify campuses in terms of racial characteristics.

The key case now comes from a white student who asserts that she was not admitted to the University of Texas (Austin) because she was white. She brought her lawsuit to the federal district court in Austin, Texas, where the judge ruled against her and accepted the previous (2003) Supreme Court Grutter decision involving the University of Michigan, which permitted limited use of racial characteristics in admissions to improve the “diversity” of historically white institutions. Since that decision was decided 5-4, the Times reporter suggests the now more reactionary high court (with Roberts, Alito, Scalia, Kennedy, and Thomas on it) may well decide against even these limited attempts at affirmative action in higher education.

Liptak describes the impact succinctly:

Should the Supreme Court disavow it, the student body at the University of Texas and many other public colleges and universities would almost instantly become whiter and more Asian, and less black and Hispanic. A judicial retreat from diversity would be deeply symbolic. . . . If the diversity rationale falls apart in university admissions, it could start to test the societal commitment to it in other arenas, notably private hiring and promotion.

An aggressively white-framing Chief Justice John Roberts Jr. has already written in a 2007 case that

Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’”

In such settings Roberts, like a great many other whites, operates mostly out of a conservative version of the old white racial frame and often refuses to acknowledge the present reality of racial oppression in the U.S., including rampant white-racist thinking and actions documented for many of our historically white colleges and universities. The former affirmative action programs and the few remaining such programs at best only provide modest little steps toward redressing institutional and systemic racism in our massive educational system.

The Texas system is particularly interesting, as it admits automatically the top ten percent of students from all Texas high schools to some part of the public university system in Texas, yet

Ms. Fisher just missed that cutoff at her high school in Sugar Land. She sued in 2008, challenging the way the state allocated the remaining spots using a complicated system in which race played a role.

The impact of cutting out even these modest affirmative action admissions programs already has been significant. In California, thus, “there are fewer blacks and Hispanics on campus in the state.” One estimate puts that loss at about one third of the black students who otherwise would have entered to the California system.

Clearly, the white elite’s moderate/conservative wings have decided that even modestly increased desegregation of many historically white institutions no longer is important to the present or future character of society. Retrogression and resegregation are the result when the mostly white political-economic elite no longer sees a convergence of interest (Derrick Bell’s apt term) between their elite interests and interests of Americans of color for greater justice and equality in society. Racial inequality thereby increases in a society that already has extreme and now increasing racial inequalities. To cite Bell again, a “racial realism” perspective recognizes that whites will never on their own allow systemic racism to be substantially dismantled. Bell died a few days ago and his words never have been truer than today.

It is also interesting that the highly undemocratic political institution, the U.S. Supreme Court with its unelected judges, gets to decide what is constitutional and unconstitutional lawmaking in this society. Yet the undemocratic character of so many of our political institutions, such as this reactionary and undemocratic court never has gotten the attention in our public discussions and debates that even these rather modest affirmative action programs have gotten. Why is that?


  1. ThirtyNine4Ever

    I’m tired of these “activist judges” that clearly have their own agenda and want to erase, what is it 40 or 50 years of legal precedent in regards to affirmative action?! I think Obama’s best legacy will be the supreme court justices he nominated that are actually based in reality.

  2. Blaque Swan

    Well . . . maybe they’ll allow the Texas law to stand. If she missed the cut in her own high school, I don’t see what difference the way the remaining seats are allocated makes.

    At the end of the day, the honest truth is that some whites, say 1-2% may well have to “suffer” in order to redress the past. But so what? Should all of white America continue to reap the benefits of racism while innocent people of color continue to suffer actual continuing injury? It boggles the mind. Is there any other time in history (besides, of course, Haiti’s reparation payments to France) when the losers of war, ie the South, and/or the perpetrators and beneficiaries of crime get to decide the terms of justice? I don’t recall anyone asking bin Laden or his family what they felt would be the right punishment for the attacks in ’01. Nobody asks former Nazis how best to redress Jews for the Holocaust. It seems that only when it comes to Africa and the African diaspora, and perhaps Palestinians, is it considered “just” that criminals get to decide justice.

  3. Seattle in Texas

    It’s hard to believe the Supreme Court would take this case for review while actively rejecting numerous cases that involve gross infringement of constitutional rights and are in need of serious evaluation/interpretation of constitutional questions. As far as I know, UT is a historically white university and has never had a problem admitting white students. The student population at UT has plenty of white students, as well as faculty and employees. This is a bogus case.

    And I thought students were supposed to apply to a couple of different colleges and have back up preferences if they aren’t admitted into the institution of their first choice? Considering she fell short, how is it reasonable for her to assume that she would, or necessarily should, still be admitted anyway? Oh, being white and taking virtually everything in life for granted, that’s right. You don’t like something or disagree, you sue…and when you go to court, you are even heard! Nevermind the rest of the world…. I wonder what she thinks about that scholarship for white men only…white males and females are going to be duking it out on whose most oppressed…U.S. society is such a trip.

    And yeah, how is it that it even made it to the Supreme Court when she did make the cut? Even if it were “just barely”? How many other students, regardless of color–including whites, “just barely made the cut”? If a student of color took their case to court, would it have made it up to the Supreme Court? And if so, would the Supreme Court have decided to review it?

    While I don’t like Texas laws, I too hope the Supreme Court will allow Texas law to stand in this case….

    • Seattle in Texas

      [[on a total side side note–it’s hard to find kind of neat things in Texas…and Sugarland’s history is very dark, bloody, and brutal to say the least…but, Sugarland does have sort of a neat New Year’s celebration with 3D mapping in their town square–with New Years right around the corner…with New Years right around the corner and if you’re in Texas and want to do something different–Sugarland’s town square is something to check out: . And that’s where they serve waffles shaped in the State of Texas on styrofoam plates accompanied with plastic utensils…uhm…yeah…anyway…but the 3D mapping is pretty neat…Sugarland…a very privileged part of the state fer sure fer sure…]]

  4. ThirtyNine4Ever

    What Texas should do is change that to only taking the top 5% of the high school graduating class. Then actually just admit the rest of the 10% under some sort of confusing admissions system. That was someone who just barely misses the cut of the top 10% will end up pretty far from the 5% cut and will have less reason to complain.

    • Seattle in Texas

      lol 😀 …or Texas can do better by having a lottery that simply accepts the first 10% of all graduating students (including G.E.D.’s) they draw…bahahaa 😀 Those who need to get up to college level can take courses to catch them up and have a guaranteed slot reserved just for them in one of the universities. That would be a way to help diversify–then for those who decline, fill the slots with the lottery system and then all others have to simply go through the standard application process when applying for admissions to universities in Texas… It wouldn’t hurt those at the top to not have guaranteed admissions and have to apply like everyone else…and it wouldn’t hurt to give the less and underprivileged an opportunity they might not have otherwise had, that many take for granted…. It wouldn’t hurt for professors in the top institutions to serve students who come from different worlds than themselves…. Hmmm, okay–waking up now 🙂

      But realistically–your idea is most excellent with regard to modifying this policy in a way that would curb such complaints. But still the policy is racist and classist in that it automatically preferences higher privileged SES whites–it’s hard to believe this made it to the Supreme Court. I can’t get over it…and how did the attorneys representing UT somehow fail to prove they lack a problem in admitting white students during the earlier trials? It’s all too much

  5. cordoba blue

    Above quote” It wouldn’t hurt those at the top to not have guaranteed admissions and have to apply like everyone else…and it wouldn’t hurt to give the less and underprivileged an opportunity they might not have otherwise had, that many take for granted…”
    Wouldn’t this take incentive away from the students who worked diligently from elementary school to get into college? What’s the motivation for working to attain good grades if you’re just going to be chosen by an impartial lottery system? In China only the best of the best even get into college because there is a scarcity of colleges to serve the population. That’s one of the reasons Chinese people work so relentlessly in academics. They don’t take education for granted.
    Then those who need to “get up” to college level will take courses to catch them up? If they weren’t motivated to work hard when they were in school, what makes you believe they’ll have any motivation to work just because they were accepted at a college? That’s like offering someone a blue hat with pink feathers if the person never wore a hat in his life. But, to get the hat they have to work for a month. Meanwhile the people who have wanted blue hats for 10 years don’t get blue hats. Wow! bahahaa That’ll show those white supremacists who’s boss huh? Just when they (and most other ethnic groups) thought studying for the SAT’s meant learning 500 index cards with vocabulary words, they are told DON’T BOTHER..won’t do you any good! It’s all too much really, isn’t it? ( shows indignant frown and starts to pout)lol.
    I think the good ole affirmative action program applied to colleges is still the most logical course. A certain number of slots are set aside for top performing African Americans and that remains the policy. There’s nothing reverse racist about this because there must be some compensation for the fact that black people have been denied access to many of America’s legal and institutional benefits. Affirmative action has created new lives for many black people and helped to break the heart breaking poverty cycle. If whites won’t willingly set aside part of America for African Americans, truly it must be done on a legal basis. As far as I know, very few white people have suffered because of these affirmative action quotas.
    Let’s be reasonable people. Abandoning the meritocracy system is ridiculous, but not setting aside permanent slots for African Americans is insidious and cruel.
    The point of anti-racism in my opinion is not to punish white people with the “bahaha” attitude but rather to elevate blacks and other ethnic groups. If this offends some whites, then so be it. But the OBJECT should not be animosity toward whites, but rather compassion toward blacks.

    • Seattle in Texas

      here’ something probably over your head, but whatever: .

      Nothing else to say or respond to–you’re clueless in virtually every respect. Not interested in your world, viewpoints, and continuous defense of white supremacy. Clearly our sentiments regarding eachother’s thoughts are mutual and incompatible–so you need not address me any more. I’m ignoring you–it would be much appreciated if you would do the same to me. Thanks.

  6. cordoba blue

    Responding to comments that don’t make sense to another commentator, and could use some editing regarding making sense, are part of the purpose of this blog. If you don’t like my comments, WHY IN THE WORLD do you still read them Seattle? LOL! Please, again, follow your own advice and take some more Prozac.
    I find your “solutions” infantile and impractical. Meanwhile you say I defend white supremacy. And my article clearly stated my defense of affirmative action-one of the greatest tools for advancing African Americans this country ever used and then unfortunately abandoned. Please “continue” to ignore me.
    I take serious issue with your facetious attacks on the white race when you should in fact be offering practical solutions to further black Americans. Instead you think it’s not wasting everybody’s time to offer silly alternatives to present day situations and then follow it up with “ba-ha-ha-ha”. Well “ba-humbug” to a truly inane commentator. Happy Halloween Seattle!

  7. Seattle in Texas

    How did you learn about this site and why are you here?

    You constantly back up the racist and classist status quo. Obviously you don’t read any of the main posts or any of the readings on the reading list on this site. And clearly, you have little experience in the real world regarding the issues and groups you are so quick to pass judgment on. Your suggestions are consistently racist and classist–the white supremacist capitalist society we live in offers no practical solutions for bringing forth true equality for all. Your suggestions are those that keep the white power structure firmly in place and keep whites privileged at the top of the racist hierarchy.

    Do what you gotta do–and I’m full of flaws and let them all hang out btw…with no shame…be it in my writing, my expression, my speech, my whatever–am far from perfect. I have no desire to be included in “perfect” groups/clicks…and I have no desire to back up and protect the white supremacy in this society and it’s foundation.

    Take care and have a good life.

  8. cordoba blue

    @ Seattle: I am just as much in the “real world” as you are Seattle. Why do you think your version of reality is any more real than mine?
    Can you deny many of your comments were made in jest? However, some of them were in earnest. And those are the ones that really concern me. How is anyone supposed to take seriously the comment that school hours are based on white supremacist ideas? Are you kidding? Is the solar system based on white supremacy also? Kids usually go to school when the sun’s up Seattle, and then they sleep at night.
    You also stated once, kids who attend school aren’t given credit for what they already know? Could you please explain? School is supposed advance knowledge, not give credit for knowledge already knowing how to blow your nose or suck your thumb. And I don’t think African American parents would disagree with me. A black mom picks her child up from school and asks what he learned today. I say, “I gave him a Halloween sticker for knowing how to blow his nose!” She looks at me like I’m on meth and asks the principal what’s up with the new teacher.
    You also glorify being “street smart” and seem to think scholastic persuits are elitist. Ok..let’s examine street smart. What does that mean? How to make a drug exchange and not get cheated. How to hide drugs when you obtain them. How to steal and not get caught. How to be in a gang and not get murdered by one of your own gang. How to lie when questioned by the police. How to play dumb if it’s in your best interests. How to brag about knocking a woman up and then leaving her and her family to raise the child. on the streets..Ever see a guy in the Mafia talk on Youtube? “Uh..da street..ahma wise guy..if youse is raised like ona lern allotta stuff dese straight people don’t know..ya know? It ain’t no straight world here..but if you kin’s a life..”
    That’s great Seattle. Really admirable. Meanwhile Asian kids are figuring out if there are alternate universes at MIT. Is that elitist? Is science elitist? Is modern medicine elitist? You complain black people don’t have access to the same medical care whites the way..I’ve seen this and I agree..but if modern medicine is “elitist”, why (according to you) would African Americans want access to it?
    Little hint: African Americans love their children and absolutely want access to everything modern medicine has to offer. Just because affluent white hippie girls (like you know who) scorn modern technology does not mean African Americans do.

    • Seattle in Texas

      *chopping up lines of Prozack for cordoba blue* enjoy your world man, and no, I don’t use thank you, but no thank you–so please quit insisting.

      I didn’t come back to respond to your, whatever you wrote above because they’re always racist and elitist–predictably the same only confirm your ignorance on virtually everything you say. It’s the same every time…. Don’t care about your opinions, though am curious how you found this site and why you are here though….

      Hmmmm, now well slap my a** and call me Sally, here’s a little town in Texas I’m sure you’d feel very much at home and enjoy very much–a place where you can sing to the choir: …I’m sure they’re very sympathetic regarding the Sugarland student who wasn’t admitted into UT for apparently being white too….

      Alright–no more entertaining your delusional world. Farewell

      • cordoba blue

        You’re the one who’s delusional. For your information African Americans don’t hate capitalism. They want to be a part of it, which is their right. You think capitalism contributes to racism and intolerance do you? Really? Then why were people in the Soviet Union denied access to churches, information from other countries, information that wasn’t first manipulated by the “the Party”, denied the right to travel, denied the right to protest or object to anything the government did or promoted? This is tolerance?
        I am now tutoring a man from Cuba. He told me that IN COLLEGE there was a textbook stating that Stalin discovered the theory of relativity, not Einstein. He also told me it said Stalin invented nuclear fission. It was absolutely unreal! He said he had to come to America before he even realized all the great inventions and discoveries in the world were NOT instituted by famous Communists. LOL!
        Are you so naive that you think capitalism and free enterprise CAUSED racism? Of course some people (namely Wall Street “managers”) abuse capitalism, but the majority of Americans want the system to remain, but adjusted to give all races and ethnic groups a place within this system.
        So, hippie girl, eat your Prozac (which you spelled wrong by the way..because..yeah I is elitist) and you live in YOUR delusional world.
        Must be nice to stare at your navel all day while us working capitalists pay your utility bills. In the Soviet Union, you had to actually work, even if it was at some mundane (I hate anything mundane and also expect schools to be universally fun and creative like a continuous video game at warp speed)job such as labeling boxes. Na-a-ah..don’t think you would have enjoyed the USSR either Seattle. Gosh, in which country WOULD you be comfortable?

  9. cordoba blue

    I don’t know if this actually happened or not. My son told me about it. The fact is, whether this experiment actually took place or not is not the purpose of the article. The crux is that socialism in GREAT DEGREES kills incentive. Everything is a question of balance. It does not compute that creating a society based entirely on socialist principles will in fact create a happy, content society wherein everything is equalized to the joy of the entire population.
    Communism, the sister of extreme socialism, was a failed experiment for a reason. Creativity was extinguished, motivation was extinguished, critical and/or analytical thinking was FORBIDDEN, obedience to the almighty state was enforced with an iron hand or you’d find yourself making snowmen in Siberia.Intolerance RULED THE DAY.
    Socialism to this extent is not the answer to diminishing racism. If it were, then the Soviet Union would have been the most tolerant society the world had ever seen. But it WASN’T! And racism ran rampant in the USSR just as racism has resurfaced in the Russia of today (see my comment on other thread).The “fable” I referenced:

    An economics professor at a local college made a statement that he had never failed a single student before but had once failed an entire class.
    That class had insisted that socialism worked and that no one would be poor and no one would be rich, a great equalizer.
    The professor then said, “OK, we will have an experiment in this class on socialism. All grades would be averaged, redistributed, and everyone would receive the same grade.
    After the first test, the grades were averaged and everyone got a B.
    The students who studied hard were upset and the students who studied little were happy.
    As the second test rolled around, the students who studied little had studied even less and the ones who studied hard decided they wanted a free ride too so they studied little.
    The second test average was a D! No one was happy.
    When the 3rd test rolled around, the average was an F.
    The scores never increased as bickering, blame and name-calling all resulted in hard feelings and no one would study for the benefit of anyone else. There was no incentive, not even competition.
    All failed, to their great surprise, and the professor told them that socialism would also ultimately fail because when the reward is great, the effort to succeed is great, but when government takes all the reward away, no one will try or want to succeed.
    Could not be any simpler than that.
    This does not translate into the US not addressing racism. It does translate into the fact that capitalism was not the egg from which racism hatched. Racism existed in literally hundreds of differing societal structures that were NOT capitalistic such as Fascist Germany, Ancient Rome, Ancient Greece, China, India with its ubiquitous caste system..and the list continues. It is simplistic and naive to EQUATE RACISM with CAPITALISM or believe that if capitalism is eliminated, racism will automatically be extinguished. In which alternate universe?

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