Tuesday, June 25, 2013


Since it's so much on my mind, I thought I would devote today's post to a brief round-up of three key Supreme Court decisions coming out this week. Each case has some serious civil rights implications, so taking a look at how these decisions go will give us a picture of the current state of various struggles for equality in the US. The three cases being decided this week are:

Fisher v University of Texas at Austin: on affirmative action

Shelby County v Holder: on the Voting Rights Act

Hollingsworth v Perry & United States v Windsor (together): on Prop 8 and the Defense of Marriage Act (DOMA) respectively, both concern gay marriage

There are extensive analogies of all cases, so I won't go into deep detail. If you want more in-depth analysis, I point you to the ACLU (http://www.aclu.org/blog) or the SCOTUS blog itself (http://www.scotusblog.com/). Instead, I'll gesture at the general temperature of the rulings so far.

On Fisher, the Court returned the case to a lower court for further review. In brief, Fisher is about affirmative action policies at UT Austin. Fisher (and another plaintiff who has withdrawn from the suit) alleged that she was not admitted to UT because she is white. The Texas system has an admission system that considers a number of factors, including test scores, extracurricular activities, and race, for students who fall below the top 10% of their classes. (The top 10% is guaranteed admission, as you might expect). Fisher's charge is that she was discriminated against because she would have been admitted had she not been white.

Obviously, this case has broad implication for affirmative action as it echoes the charge that the traditionally privileged suffer discrimination at the hands of measures intended to establish equal rights. Since it seems clear (to me at least) that diminishing privilege is not the same as suffering discrimination, I would have liked to see a stronger ruling here. I often get the sense that jurists prefer technicalities to substance since substance can be very controversial. When the highest court succumbs to that impulse, I get the sense that an inevitable confrontation has just been delayed. As such, we wait for the next round.

Shelby brings us an even more disappointing result. In brief, Shelby County challenged provisions of the 1965 Voting Rights Act, specifically provisions that require certain states with histories of discrimination to seek federal approval for changes in voting rules. The approval process was intended to eliminate things like literacy tests as requirements for voting, especially where literacy tests were used to disenfranchise African-Americans or other marginalized populations. Here, the court struck down those portions of the VRA, removing general federal oversight. As I understand it, the Attorney General will now have to address any instance of such practices on a case-by-case basis.

Here, I have to echo the disappointment you'll find on the ACLU's blog. Coming from Louisiana, I can attest that discrimination is still alive and well in the South. In New Orleans, you don't have to go farther than the school system to see it happen. The public school system has been allowed to steadily decline as white parents (and any others who can afford it) send their kids to Catholic schools. While the Catholic schools don't discriminate, historical disparities in wealth and economic status are still quite visible in neighborhood demographics. Poor white kids suffer it, too, showing that classism sometimes dominates over racism. Nevertheless classism in New Orleans has a very racist flavor, so that's really no help. Listen to my grandfather talk about society for fifteen minutes, and I assure you, you'll see that the VRA and affirmative action are far from obsolete. Now, the task will be to watch for changes in voting procedures, especially in small districts that may be overlooked.

Decisions in the last two cases will appear tomorrow. Of course, I'm hoping for something a bit more positive. Overall, I find it disconcerting that there is a conceit that we've moved beyond the prejudices of the past. It's not enough to claim that one is egalitarian and believes in equal rights and equal treatment. We all have to attend to the culture of privilege (in various forms) that persists long after equality is codified in law.

We also have to be careful to deride our imperfect solutions. Affirmative action may not be a perfect solution. It may not be ideal in the long run. On the other hand, it has been done some good, opened some doors, and made a real difference. When introduced, I will agree that it was necessary and suitable. It may cause some problems in addition to solving or ameliorating others, but I think it's important to look to the good done, especially when we think about what a perfect solution would look like. A perfect solution is simple to state: eliminate the prejudicial, small-minded, and hostile attitudes toward everyone. We can even state it positively: instill in every agent a belief that all sentient beings should be treated with the most full measure of respect due to oneself. While this is easy frame, it's hard to do. After years of education, activism, and awareness-raising, we still encounter discrimination and prejudice, people are still not treated equally, and people still suffer because of it.

If we can't realize a perfect solution, the only solutions left to us are imperfect. As such, we have little choice but to embrace imperfection, do what we can where we are, when we. We need to revisit our measures, continue to develop our education, outreach, and awareness efforts, and generally continue to erode social injustice. It's a long, hard road, but it's the one we have to walk. There may be no real end state to a fully just society, just continued adjustments toward justice, compassion, and peace.