Two events over the past seven days underscore just how badly off-the-mark the Supreme Court's ruling on race (PDF) was last week. In a 6-2 decision, the Court upheld Michigan voters' amdendment to the state constitution to end the consideration of race as a factor in the state's higher-education admissions.* Almost on cue, racially charged incidents quickly followed the decision and unfolded in a way that seemingly only Hollywood could engineer.
The spectacle of racist rancher Cliven Bundy and racist NBA owner Donald Sterling underscore why minority political and economic rights cannot rest solely upon majority rule. America is changing but it's not changing fast enough to do away with key protections, and that's what the Court seemingly did not get.
Before turning to the way in which the race-infused antics of rancher Cliven Bundy and Los Angeles Clippers chief Donald Sterling upended the Supreme Court's rationale of a race-free America, it's important to quickly review the action the Court took.
Last Tuesday the Supreme Court upheld in Schuette v. Coalition to Defend Affirmative Action a ban on the use of race as a factor in university admissions. That prohibition was passed by the people of Michigan in a 2006 referendum. By upholding the state's referendum, the Court effectively gave a green light to states that want to ban affirmative action through popular vote. Eight states have already done just that. Politico reports that initiatives in three other states--Ohio, Missouri and Utah--are underway. Should these pass, more than one out of three Americans would be impacted by these laws. States with majority people of color populations, specifically California and Texas, are already among them.
A key problem with the growing unpopularity of affirmative action programs in higher education admissions is that they are an important tool in the economic advancement of people of color.
For example, research by The College Board Shows that black men benefit more economically from higher education than any other group when compared to those with a high school diploma. Black men with college degrees earn almost seven out of 10 dollars more than those without college degrees. This trend of greater economic benefit of college education holds true for all non-white racial groups. That's why access to higher education is essential to closing current economic gaps created and enlarged by history. The economic weight (PDF) of the past is why white households have six times the wealth of black and Latino households.
But once a popular vote shuts down affirmative action, the doors of higher education lock out droves of people of color. The results of Michigan and other states bear this out.
After the 2006 ban, as an analysis from The New York Times lays out, the number of blacks enrolled at the University of Michigan fell by 25 percent even as the proportion of black high school students rose by 30 percent. When California did the same in 1998, the percentage of Latinos fell by 30 percent where it's remained for the past 16 years. That's five times lower than Latinos' share of California's high-school students.
Why We Don't Vote on Rights
The racial inequities that reassert themselves after popular votes against affirmative action have economic consequences. These twin pillars of injustice, one political and the other economic, are why Justice Sonia Sotomayor declared from the bench that "race matters" in her dissent. Her need to do so points to her belief that the Supreme Court just didn't get it.
Even with its beginnings as a slave republic, the drafters of the U.S. Constitution knew instinctively that minority rights shouldn't be subject to popular vote. Their deep concern and warnings against "the violence of the faction" is one of the reasons that popular referendum is left out of the Constitution for federal lawmaking, why there's no direct election of the president, and is a key rationale for the establishment of the Supreme Court itself. "Faction" is described by founder James Madison as a group of people who are opposed to "the rights of other citizens" due to "some common impulse of passion."
The issue here is that Supreme Court clearly doesn't see that race can still be an "impulse of passion" that denies "the rights of others." That's why it easy to believe that the justices somehow live in a world separate from the rest of us.
Of course there is a black man as president, but only six out of 100 seats in the Senate are Latinos, blacks and Asian-Americans. Yes people of color lead some of America's largest and most storied companies but, as I have written before, only two out of the 100 wealthiest people in the country on the Forbes list are people of color. And the Supreme Court's utopian vision was bound to collide with the reality of America's complex racial landscape.
Race Still at Work
Just 24 hours after the affirmative action ruling, a bombshell recording of Tea Party darling and racist rancher Cliven Bundy quickly reminded us that race is still an animating factor.
Bundy, in a protracted standoff with the federal government over grazing fees for his tax-payer subsidized cattle, was filmed exhorting "the negro" to return to slavery. Bundy is a cause celebre for the Tea Party and for large parts of the Republican Party.
Up until his incendiary comments in which he said that blacks should be "picking cotton and having a family life and doing things" Bundy had the support of two leading GOP presidential candidates, Senators Rand Paul and Ted Cruz. But, as The Washington Post reports, Bundy's views are not new and have been well known for 20 years.
Two days after the Bundy revelations, a tape was released to TMZ with LA Clippers owner Donald Sterling allegedly telling his biracial girlfriend "not to bring [blacks] to my games" and admonishing her for posting pictures on Instagram "walking with black people." Like Bundy, Sterling has a long track record of racial bias but in his case includes proven discrimination.
The bottom line is that days after the Supreme Court essentially said that race doesn't matter, race showed up in a spectacular way. And it continues to show up in America's voting booths.
Though people of color, youth, and women voted in higher numbers in the presidential years of 2008 and 2012, their share of the electorate plummets by as much as 50 percent in off-year elections. The different racial composition of the electorate depending on the election year helps explain why America elected a conservative Congress in 2010 and Barack Obama in 2012.
And the variation of the electorate depending on the year is another reason why rights aren't left to be voted on by electorates.
All in all, its easy to understand why Justice Sotomayor ended her written objection to the affirmative action ruling by saying "the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self government."
A glimmer of hope in all of this that those who support affirmative action can focus their energy away from legal proceedings and towards what matters now: the long and difficult work to win the issue at the ballot box.
*Post has been updated since publication.