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With Racial Justice for Some, Not All

By Gloria J. Browne-Marshall Contributing Writer | 6/28/2013, 1:59 p.m.
Trayvon Martin’s parents seek justice for a son killed for walking while Black.
Black and Hispanic student achievement are harmed by affirmative action policies like those in the case of Fisher v. University of Texas.

However, now race as only one factor may be unconstitutional. The Court’s Fisher decision is disappointing. But, it’s not an outright disaster. A lower court is supposed to review the case and decide if there is any other workable alternative that creates diversity on campus without involving race at all.

Certainly, this non-race admissions policy may be challenged as some clandestine affirmative action. Either way, questions emerge. How many students of color are needed to provide diversity? Since the Court allows affirmative action in order to bring diversity to the education of White students, then students of color are placed in a precarious position.

In other words, Universities are expected to fix a festering race discrimination problem without using the word “race” and without making a White applicant sense there is “reverse discrimination”, even when none exists, and create enough diversity to provide an educational benefit for White students while preventing Black students from feeling isolated and marginalized.

In the midst of this struggle, admissions officers are called benign slave-holders by Justice Clarence Thomas. He would dismantle all affirmative action programs. Comparing it to slavery and Jim Crow-era segregation, this beneficiary of affirmative action believes it as harmful to Blacks and Hispanics as slavery.

Ironically, affirmative action, which benefited Justice Thomas, has also given him the power to end it forever. It is also ironic that the Equal Protection clause, which was enacted solely for African-Americans, is now used against them. Diversity, which was meant to focus on people of color, is now meant to benefit the education of White students.

In ruling to decide the fate of affirmative action another day, the U.S. Supreme Court did not ‘kick the can’ down the road. The Court kicked the future out of this policy.  Shelby County, Alabama, with its troubled history and racial strife present-day, can determine the level of progress needed to end voter protections. Affirmative action will soon be an antiquated phrase. It’s a post-race society in perception, no matter the reality. 

If the direction of the Court does not change, the Trans-Atlantic Slave Trade will become just a bad admissions policy.

One way the public can respond is by contacting Congressional representatives from their states and demanding action to protect voting rights. The NAACP makes this process easy with a quick online visit to its web site: www.naacp.org.

Gloria J. Browne-Marshall is a legal correspondent covering the U.S. Supreme Court, an Associate Professor of Constitutional Law at John Jay College in New York City, and author of “Race, Law, and American Society: 1607 to Present.” @GBrowneMarshall