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When The Media Misses The Mark Entirely: The Supreme Court And Racism In The 21st Century

June 25, 2013

Miss the Mark

It’s hard to watch when otherwise reliable sources go all the way wrong. And I do mean the whole media. Every single outlet is characterizing today’s rulings as “a mixed bag,” or “unclear.”

Having slogged through the decisions for Fisher v. University of Texas at Austin, University of Texas Southwestern Medical Center v. Nassar, and Vance v. Ball State University I can tell you that there is nothing mixed about the message the court was sending. It’s perfectly clear and extremely racist.

The Supreme Court of the United States has managed to give us yet another shining example of racism in modern America. As it stands now, if an employee is retaliated against because they file a claim of discrimination, they cannot seek damages for that retaliation as an extension of the discrimination. If an employee can prove discrimination by someone who has authority over them and who writes their performance evaluations they cannot seek damages unless that person is officially their supervisor. That doesn’t sound like it would be such a big deal except a not small number of companies official chain of command has little to do with the people an employee actually works with. So, you know, the person who is making your life miserable is golden, as long as your company is large enough to have you reporting directly to HR or small enough that you don’t have an official supervisor.

On the scholastic front, SCOTUS punted the decision, deciding that because Texas admits any Texas high school student who graduates in the top ten percent of her class automatically obtains admission to university there is no need for Affirmative Action. So courts will need to confirm that the use of race is “necessary” – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body.

Guess what? THAT’S RACIST!

The Court could have examined the cases honestly and applied a little common sense and a lot of legal precedent. They could have acknowledged that the title “supervisor” has far less impact on the hostile nature of a work environment than does the person who has the ability to give an employee the worst, most humiliating, lowest status jobs. They could have examined the fact that, in many cases, it is performance evaluations that determine raises, bonuses and even the continuance of employment.

But they didn’t do any of that.

“Justice Antonin Scalia joined the Court’s opinion, but he also wrote a separate, one-paragraph concurring opinion in which he made clear that, if Fisher and her lawyers had asked the Court to do so, he would have voted to overrule the 2003 decision in Grutter and eliminate the use of affirmative action altogether.  Justice Clarence Thomas – who in his autobiography blamed affirmative action for his problems finding a job after he graduated from Yale Law School in the 1970s – shared that view, but he opted to discuss his reasoning at length, in a twenty-page concurring opinion in which he suggested (among other things) that “the arguments advanced by the University in defense of discrimination are the same as those advanced by the segregationists.”

Guess what else? THAT’S RACIST TOO! Also, Justice Thomas’ assertions are largely fact free. Affirmative Action is the opposite of segregation. In fact, it is an answer to and a weapon against segregation.

I would suggest that the reason Mr. Justice Thomas had a hard time finding jobs after his law school graduation had more to do with his obvious inability to read and comprehend basic concepts of law and logic than it did Affirmative Action.

I’ve written before about how color blindness is the new racism. Let me refresh your memories.

The pretense, that the best way to ensure racial equality is to act as if it already exists, is an expression of privilege. (Let me pause here to point out that even a cursory reading of Mr. Justice Clarence Thomas’ autobiography makes it clear that his whole existence has been about seeking and then exercising privilege.) The ability to ignore the fact that racism and racial disparity still exist is not something to be lauded. It’s not something that People of Color should have to accept in order to make SCOTUS or anyone else comfortable. Why? Because that ignorance hurts PoC and it hurts the nation as a whole. Because, you know, when it’s harder for a whole group of citizens to get an equal chance, you make it harder for employers to hire the best person for the job. No matter the intent, colorblindness is not something that brings us all together. It’s not a tool to make the college admissions process or the hiring process fairer. It’s an active attempt to make PoC invisible.

Systemic racism in America is insidious and one of the most damaging aspects of it is the false assertion that Affirmative Action is harmful. It’s not. When it’s used correctly it levels the playing field allowing the best qualified candidates equal access. When it’s used wrong it’s really great for White people.

Caucasians can, if they choose to, embrace the “we’re all the same” ideal and that can be a good thing for them. That’s what Abigail Fisher did in her suit. Ms. Fisher, the plaintiff in Fisher v. University of Texas at Austin, feels she was harmed because she didn’t get in to law school and other candidates, some of whom were PoC, did.Her argument is essentially, “we’re all the same and the only reason that I didn’t get in to the school I wanted to get into and other not White people did is because they were given “special treatment,” via Affirmative Action.”


If she’d been in the top 10% of her class she would have gotten in automatically. She didn’t. Instead she had to compete for a slot and she didn’t get one. By her understanding of the world, the problem isn’t that she wasn’t a good enough student to get an auto slot. The problem is not that she was not competitive enough to gain admission by her merits. The problem is PoC were admitted and she wasn’t so that must indicate unfairness in the process.

That assertion is racist on its face and I’m ashamed that SCOTUS supports it.

PoC can never, ever do that. We can never assume fairness int he process because we understand that the process, no matter what the process is, will be tainted at some level by bias. We can’t ignore the fact that Caucasian felon and a qualified Black man with no criminal record are equally likely to be hired for a job opening. Meaning that despite what Mr. Justice Scalia thinks, reality makes it obvious that racial bias in filling positions is still alive and well in 2013.

We may all be the same but we can’t pretend that society treats us all the same. To do so would be idiocy.

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