The Supreme Court's most (in)famous pronouncement on the issue of race and the rights of African Americans and the one with which any analysis of the role of race in American jurisprudence should begin is that

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.

Dred Scott v. Sandford, 60 U.S. 393, 407 (1857). This is the starting point in the long, tortuous struggle for greater equality and civil rights in this country, the benchmark against which our progress must be measured, and the backdrop which must never be forgotten.

As Justice Sonia Sotomayor tartly points out in her dissent to the Court's recent opinion in Schuette v. BAMN, in which the Court upheld Michigan's amendment to the state constitution banning race-sensitive university admissions, it is a history to which her colleagues in the plurality are oblivious. See No. 12-682 slip op. at 56 (April 22, 2014) (Sotomayor, J. dissenting) (The view that race-sensitive admissions do more harm than good "ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America.")

In contrast to Justice Sotomayor's understanding of a long, ongoing struggle against a pervasive racism that saturates American life and history, her colleagues seem to view racism in modern life as an occasional aberration which warrants the Court's attention only is its most blatant intentional forms. The general cluelessness of the Chief Justice on this issue is apparent in his conclusion:

To disagree with the dissent’s views on the costs and benefits of racial preferences is not to “wish away, rather than confront” racial inequality. Post, at 46. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.*

Schuette v. BAMN No. 12-682 slip. op. at 2 (Roberts, C.J. concurring). The Chief Justice is correct that people can differ in good faith on this issue, but the sad fact is that all too often the openness and candor of the white majority is open to question for very, very good historical reasons. And as a white kid who grew up outside Pontiac and Detroit, I am not prepared to give Michigan's white majority a pass on this issue.

The narrower issue in the case was whether it was appropriate to use the state constitution to override the admissions systems developed by elected college regents because those systems encouraged at least modest representation of minority students in the student bodies of Michigan's public universities. As Justice Sotomayor points out, minority representation has dropped sharply since the passage of the amendment, a result that can hardly be construed as accidental. Justice Sotomayor argues that the majority should not be able to rig the political system to take away political gains of minorities at one level of government by overriding those gains at a higher level explicitly on the issue of race. Doing so clearly deprives minorities of a level political playing field and a chance to have a fair opportunity for political participation in their local communities.

There is more at stake here than the access of minorities to education in the state of Michigan. Ultimately at stake is an understanding of our nation, its history, and what is required to overcome that history.


© Charles Williamson Day, Jr., 2016. All rights reserved.

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