“Race matters in the lived experience of Americans, even if legal barriers are gone,” wrote Justice Ketanji Brown-Jackson in her eloquent dissent from the Supreme Court decision ordering an end to affirmative action in higher education.
She denounced the Court’s cynical advocacy of “colorblindness.” That colorblindness takes U.S. law back to the days before the 1954 Brown v. Board of Education ruling against school segregation.
In Brown v. Board of Education, the Supreme Court overturned more than half a century of a lie: the lie that separate schools were equal schools. Back then, the Court recognized the truth that segregation meant inherently unequal schools. In its ruling, the Court considered facts as well as law, specifically, social science research on the impact of segregation.
In Students for Fair Admission v. Harvard, the Supreme Court held that the law must ignore race. To reach that conclusion, the majority ignored evidence of continuing segregation, discrimination, and racism.
Fewer than half of Black American families own their own homes, compared to more than three-quarters of White American families. Discrimination in mortgage lending, housing valuation, and in what houses are shown to prospective buyers continues. The result: continuing racial segregation in housing. Housing segregation continues school segregation. White families had a median wealth of $171,000 in 2016, compared to $17,600 for Black families.
Facts do not matter to the current Court. The wealth gap? The income gap? Segregated housing? Segregated schools? Continuing and well-documented discrimination in employment, in housing, and in health care?
Poof! With a wave of the judicial wand, all vanished from legal view.
The Court says that “Eliminating racial discrimination means eliminating all of it.” Then the majority opinion goes on to insist that the Fourteenth Amendment forbids “remedy[ing] the effects of societal discrimination through explicitly race-based measures.”
In dissent, Justice Sonia Sotomayor rebukes this misstatement:
“Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”
The end result of overturning affirmative action: a court and a country that piously denounce racism, while forbidding effective action to address it. This is not colorblindness, but rather the willful blindness denounced by the prophet Jeremiah: the “foolish and senseless people who have eyes but do not see, who have ears but do not hear.” (Jeremiah 5:21)
As Justice Sotomayor concludes, the Court’s rejection of affirmative action ultimately “will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound. As has been the case before in the history of American democracy, ‘the arc of the moral universe’ will bend toward racial justice despite the Court’s efforts today to impede its progress.”
For more on segregation in education, see Justice Sonia Sotomayor’s dissent, especially pages 18-25. For more on the continuing racial disparities in wealth, housing, and employment, see Justice Ketanji Brown-Jackson’s dissent, especially pages 11-14.