A willful misreading of racism today: Fisher v. University of Texas is part of a general attack on minority rights

Voting rights, as well as affirmative action, are under attack, as if racism were a thing of the distant past

Published December 18, 2015 10:59AM (EST)

  (AP/Charles Dharapak)
(AP/Charles Dharapak)

On Dec. 9, the Supreme Court once again heard the case of Fisher v. University of Texas, in which the plaintiff argues that the University of Texas at Austin unfairly denied her admission to its law school. Abigail Fisher’s claim is that UT admitted less qualified candidates over her, solely based on race. This is Fisher’s second time before the Supreme Court. In June 2013 the Court, in a 7-1 vote, sent the case back to the 5th Circuit Court of Appeals. In July 2014 that court once more found in favor of the University of Texas. Fisher then petitioned the Supreme Court to hear the case again, and that is what happened earlier this month. At least one justice asked what had changed since 2013. "We’re just arguing the same case. It’s as if nothing had happened," complained Justice Anthony M. Kennedy, who wrote the opinion of the majority the last time the court heard the case.

One reason for Fisher’s case being heard again by the Supreme Court might be the persistence of one individual who is behind not only the Fisher case, but also a controversial attack on voting rights, as reported by Reuters:

[T]he U.S. Supreme Court will decide two cases that could fundamentally reshape the rules of race in America.  In one, a young white woman named Abigail Fisher is suing the University of Texas over affirmative action in college admissions. In the other, an Alabama county wants to strike down a law that requires certain states to get federal permission to change election rules.

If they win, the names Fisher and Shelby County, Ala., will instantly become synonymous with the elimination of longstanding minority-student preferences and voting-rights laws. But behind them is another name, belonging to a person who is neither a party to the litigation nor even a lawyer, but who is the reason these cases ever came to be.

He is Edward Blum, a little-known 60-year-old former stockbroker. Working largely on his own, with the financial support of a handful of conservative donors, Blum sought out the plaintiffs in the Fisher and Shelby County cases, persuaded them to file suit, matched them with lawyers, and secured funding to appeal the cases all the way to the high court.

As has been covered widely in the press, it turns out that Fisher wasn’t denied admission because of her race, rather because of her mediocre academic record. Whites with higher scores were admitted over her; applicants of color were also denied based on the same criteria. But that has not deterred Blum and others, who are interested in this case as part of a general attack on minority rights.  

As the New York Times reports, another case Blum has backed could well have the effect of drastically cutting into the power of the Latino vote:

The basic question in the case, Evenwel v. Abbott, No. 14-940, is who must be counted in creating voting districts: all residents or just eligible voters? Right now, all states and most localities count everyone…  The case, a challenge to voting districts for the Texas Senate, was brought by Sue Evenwel and Edward Pfenninger, who asked the court to require states to count eligible voters. They are represented by the Project on Fair Representation, a small conservative advocacy group that has been active in cases concerning race and voting.

Thus what we see is conservative groups using the court in order to maintain white advantage in each of these key areas: education and electoral politics.

Gary Segura, a professor of political science at Stanford and a specialist in voting rights, explains how this might affect the Latino vote: “The central issue is this--the constitution affords representation to ‘persons’ whereas the districting litigation over US history is concerned with 'voters.'  What these activists want to do is award states House seats based on people, but then draw districts based on voters, so that each district has an equal number of adult-citizen-eligibles.  This would hugely empower rural areas and GOP strongholds, where there are less children and immigrants.  It would devastate Latino representation in the short run.”

In each of these cases there is a keen interest on the part of conservatives to turn back the progress this country has made in terms of race and equality. One of their key arguments is that America’s history of racism is past, and therefore laws addressing the legacy of racism are today unnecessary and indeed harmful.

For example, at the Dec. 9 hearing Chief Justice John Roberts asked: "How does the university know when it has achieved its objective? At what point does it say, OK, the plan has worked?.... It was important in Grutter [Grutter v. Bollinger, 2003] to say, Look, this can’t go on forever, twenty-five years."  Well, by Roberts’ own reckoning (and that of Sandra Day O'Connor), we still have 13 years to go.

This was also Roberts’ reasoning when his court cut away at the Voting Rights Act of 1965.  In 2013 he opined that the Act was no longer needed in the South: “Our country has changed ... While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

It’s hard to square Roberts’ and others' understanding of the “current situation” with what has been revealed about the persistence of institutionalized racism in our country. But this suspicion toward voting rights activism is nothing new for John Roberts. As reported in Mother Jones magazine, Roberts has a long history of antipathy toward the Voting Rights Act. In 2009 he asked the government attorney defending the law: "Congress can impose this disparate treatment forever because of the history in the South?"

It is this willful misreading of racism today, specifically in places like Missouri, Alabama and Texas, that helps us understand what facilitates these attacks on affirmative action and voting rights. The moment there appears to be some threat to entrenched power, conservatives are ready to say, “that’s enough,” or more likely, “that’s too much.”

But historical racism is not as sequestered in the distant past as some would like to believe, and it’s crucial to address the real, not imagined, persistence of racism today, especially in the South, contrary to what John Roberts believes. In their amicus brief to the court regarding Fisher v. Texas, legal experts Lani Guinier and Tomiko Brown-Nagin argue the importance of historical context:

For the very first time in history, the U.S. Supreme Court is asked to rule on the constitutionality of an admissions program designed to increase racial diversity at a university located in a southern state— Texas.

The history of Texas and of the University of Texas (“UT”) distinguishes the present case from DeFunis v. Odegaard, 416 U.S. 312 (1974), Regents of the University of California v. Bakke, 438 U.S. 265 (1978), and Grutter v. Bollinger, 539 U.S. 306 (2003). The aforementioned cases all involved universities located in the North or West that lacked a history of state-mandated segregation. Fisher arises out of a profoundly different context.

UT’s quest for a racially diverse student body is justified, in part, because it represents an attempt by UT to come to terms with its own history of purposeful discrimination and the history of purposeful discrimination by the state of Texas.

Indeed, Justice Sandra Day O’Connor acknowledged in Grutter v. Bollinger that “[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause.” And it is precisely this historical context, affirmed by the court, that Roberts and other conservatives are trying to erase, both in Fisher and in cases involving voting rights.

But this leads to a contradiction.  On the one hand, those arguing for rolling back on affirmative action, voting rights and other progressive measures say that they are no longer needed, that we have moved far enough along historically to let them go. On the other hand, there are clear empirical data that show America’s legal, law enforcement, economic, educational, prison, political and social systems still suffer from considerable racism. And what’s more, rather than celebrate the supposed progress we have made in terms of race, an astounding number of Americans seem to regret it. For them any gains made by minorities, however modest, lead to “reverse racism” and anti-white discrimination. Those filing these complaints, in fact, wish to turn back the hands of time.

Just recently, the Washington Post reported:

In a new poll released by the Public Religion Research Institute (PRRI) on Tuesday, a whopping 43 percent of Americans told researchers that discrimination against whites has become as large a problem as discrimination against blacks and other minority groups. And an even bigger share of Americans — 53 percent — told pollsters American culture and "way of life" have mostly changed for the worse since 1950.

People like Fisher thus cry “reverse racism” and argue that any consideration of race when it comes to college admissions is wrong and unconstitutional. But as Erwin Chemerinsky, founding dean of the University of California, Irvine, School of Law notes, "There is no basis for concluding that the 14th Amendment equal protection clause requires colorblindness." In drafting the 14th Amendment, he says, Congress recognized "an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination."  Indeed, that was one of the findings of Grutter, in which the court found that “remedying past discrimination” is one “permissible basis for race-based governmental action.”

According to Gerald Torres, a professor of law at Cornell University and an expert in affirmative action jurisprudence, in rehearing Fisher, “what they [the conservative justices] seem to be asking for is a do-over of Grutter. But what, exactly, do they want to do over? The fear is that the Court is seeking to undo diversity as a rationale for any kind of individuated assessment that permits the race or racialized experience of the applicant to be taken into account in order to promote more educational diversity in the classroom, a condition that improves the learning environment for all students.”

As we move forward, Torres advises: “The language of strict scrutiny, compelling state interests, and narrow tailoring will be where the legal action is, but the political question is really still quite simple. Is there a continuing commitment to the goal of providing equality of opportunity in education, taking into account the history of racial subordination in this country? Commitment comes first, technique second. Will the language of critical mass be subsumed into a bland notion of ‘diversity’ or will the Court continue to permit evidence of the value of racial and other kinds of diversity to be taken into account in constructing entering classes in elite colleges and universities?”

Finally, exactly what is Fisher asking for in terms of justice?  The Chronicle of Higher Education story tells us that, “Asked by Justice Ginsburg if Ms. Fisher seeks any damages from the University of Texas other than the return of her application fee, Mr. Rein said she may eventually ask to be compensated for whatever financial losses she suffered by not attending a college in her own state and not being able to go into her state’s job market with a degree from its flagship university.” It sounds like we are not talking about white rights, we are really talking about white privilege. The base opportunism of a mediocre student playing the reverse discrimination card is appalling, but no less so is the opportunism of conservatives like Blum, who are using such cases as a way to dismantle still much-needed policies to address the effects of a still virulent strain of U.S. racism.

By David Palumbo-Liu

David Palumbo-Liu is the Louise Hewlett Nixon Professor at Stanford University. Follow him on Twitter at @palumboliu.

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