High court poised to upend civil rights policies
|
| In
this March 5, 2013 photo, University of Texas senior Bradley Poole, 21,
poses for a photo on the campus in Austin, Texas. Poole, an advertising
major, became president of the school's Black Student Alliance, seeking
camaraderie after noticing he often was the only African-American in his
classes. In two pivotal legal cases, one on affirmative action and
another on voting rights, a divided U.S. Supreme Court may be poised in
the coming weeks to rule that racism is largely a relic of America's
past. The question is apt as the nation nears a demographic tipping
point, when non-whites become the country's majority for the first time. |
WASHINGTON (AP) -- Has the nation lived down its history of racism and should the law become colorblind?
Addressing
two pivotal legal issues, one on affirmative action and a second on
voting rights, a divided Supreme Court is poised to answer those
questions.
In one case, the issue is whether
race preferences in university admissions undermine equal opportunity
more than they promote the benefits of racial diversity. Just this past
week, justices signaled their interest in scrutinizing affirmative
action very intensely, expanding their review as well to a Michigan law
passed by voters that bars "preferential treatment" to students based on
race. Separately in a second case, the court must decide whether race
relations - in the South, particularly - have improved to the point that
federal laws protecting minority voting rights are no longer warranted.
The
questions are apt as the United States closes in on a demographic
tipping point, when nonwhites will become a majority of the nation's
population for the first time. That dramatic shift is expected to be
reached within the next generation, and how the Supreme Court rules
could go a long way in determining what civil rights and equality mean
in an America long divided by race.
The
court's five conservative justices seem ready to declare a new
post-racial moment, pointing to increased levels of voter registration
and turnout among blacks to show that the South has changed. Lower
federal courts just in the past year had seen things differently,
blunting voter ID laws and other election restrictions passed by
GOP-controlled legislatures in South Carolina, Texas and Florida, which
they saw as discriminatory.
"Whenever a
society adopts racial entitlements, it is very difficult to get out of
them through the normal political processes," Justice Antonin Scalia
said in oral arguments earlier this year, suggesting that it was the
high court's responsibility to overturn voting protections
overwhelmingly passed by Congress in 2006.
Justice
Ruth Bader Ginsburg, part of the court's more liberal wing, countered
that while conventional discriminatory tactics may have faded, new ones
have emerged. "Congress said up front: We know that the (voter)
registration is fine. That is no longer the problem. But the
discrimination continues in other forms," she said.
The
legal meanings of "equality," "racism" and "discrimination" have been
in flux since at least 1883, when justices struck down a federal
anti-discrimination law, calling it an unfair racial advantage for
former black slaves. Today, justices face the question of whether the
nation has reached equality by a 1960s definition or some new standard.
By
some demographic measures, America has reached a new era. But the
latest census data and polling from The Associated Press also show race
and class disparities that persist.
President
Barack Obama, the nation's first black chief executive, was re-elected
in November despite a historically low percentage of white supporters.
He was aided by a growing bloc of blacks, Hispanics, Asian-Americans and
gays, and a disproportionate share of women, who together supported him
by at least a 2-to-1 margin.
Another sign of
shifting times: Among newborns, minorities outnumbered whites for the
first time last year, the Census Bureau reported. "The end of the world
as straight white males know it," one newspaper headline said on the
morning after the November election.
Still, issues linger by race, age and class:
-Jobs
and income. Black poverty has fallen by half since 1959, to 27.6
percent, but is still nearly three times the poverty rate of whites.
Black and Hispanic men are twice as likely as whites to work in the
low-paying service sector. Since the 1970s, the unemployment rate for
blacks has remained double that of whites.
-Wealth.
The wealth gap between whites and minorities is at its widest since
1984. Predominantly younger minorities were hit hard when home prices
fell, while older whites were more likely to invest in 401(k) retirement
plans and stocks, which have rebounded since the recession. The median
net worth of white households was $113,149 in 2009, compared with $6,325
for Hispanics and $5,677 for blacks.
-Class
and education. By some measures, the gap between rich and poor has
stretched to its widest since
1967. Globalization and automation have
eliminated many mid-skill jobs, leaving a polarized pool of low-wage
work and high-skill jobs requiring advanced degrees. About 40 percent of
whites age 25-29 graduate from college, compared with 15 percent for
Latinos and 23 percent for blacks.
-Racial
bias. Prejudice against blacks worsened slightly in the four years since
Obama was first elected in 2008, according to an AP poll. In all, 51
percent of Americans expressed explicit anti-black attitudes, compared
with 48 percent in 2008. Questions designed to ferret out subconscious
bias raised the proportion with anti-black sentiments to 56 percent, and
the share of people expressing pro-black attitudes fell.
Roderick
Harrison, a demographer who is black, says he felt pride in Obama's
re-election, which to him reaffirmed a historic achievement not only for
black Americans but also a broader coalition of racially diverse
groups. Still, he worries that demographic change and Obama's success
may lead to a tipping point in the opposite direction, where people in
the United States are led to assume racial equality has fully arrived.
The strength of minority support behind Obama was aided by the 1965 Voting Rights Act and other protections, he said.
The
term "minority" often refers to an unequal or disadvantaged status and
isn't always about numbers or counts, said Harrison, a former chief of
racial statistics at the Census Bureau. The District of Columbia,
Hawaii, California, New Mexico and Texas already have populations of
racial and ethnic minorities that collectively add up to more than 50
percent. Across the U.S., more than 11 percent of counties have tipped
to "majority-minority" status.
"Minority
status is a matter of exclusion from full participation in society,
remaining long after a nation becomes `majority minority,'" Harrison
said.
---
To Bradley
Poole, 21, a senior at the University of Texas at Austin, racial
progress is measured by the little things. An advertising major, Poole
became a member and then president of the school's Black Student
Alliance, seeking camaraderie after noticing he often was the only
African-American in his classes.
"I definitely feel the difference," he said.
The
university automatically grants admission to the top 10 percent of
students in each of the state's high schools. That helps bring in
students of different backgrounds because Texas high schools are highly
racially segregated, reflecting decades of segregated neighborhoods.
In
a state where blacks now make up 11.5 percent of the population and
Hispanics 38 percent, the university's enrollment of 50,000 students
never rose above 3 percent to 4.5 percent black and 13 percent to 17
percent Hispanic. So in 2004 it decided to allow students who miss the
10 percent cutoff to be considered for admission based on a range of
socioeconomic factors, including race.
The share of black students has since increased slightly to 6 percent, while Hispanic enrollment rose to 26 percent.
The
university's affirmative action plan is being challenged in the Supreme
Court by Abigail Fisher, a white student who missed the cutoff and was
rejected. Fisher says she was denied fair consideration because of her
race.
A 2003 Supreme Court opinion said
universities may consider race only as one of several factors to promote
diversity. The court said diversity benefits everyone because in a
global economy it fosters leaders who can relate to people of different
backgrounds.
In the last week, justices also
agreed to take up a second affirmative action case this year, deciding
whether states may pass laws that restrict the use of race preferences
in college admissions. That case involves an appeal to a lower court
ruling that found a 2006 voter-approved ban in Michigan
unconstitutional, reasoning that such bans put minorities at a
disadvantage.
The justices' decision to hear
the Michigan case next fall - with their decision in the Texas case
still to be announced this spring - suggests that the court will not
decide in the Texas case to eliminate affirmative action programs in
higher education.
In the seven or so states
that enacted bans on affirmative action at their public universities,
freshman enrollments of blacks and Hispanics almost always fell
afterward - as much as 50 percent at UCLA and the University of
California, Berkeley - although in some cases they later rebounded.
Those states now include Arizona, California, Florida, Nebraska, New
Hampshire, Oklahoma and Washington. A Supreme Court ruling that further
restricts affirmative action could shake up college admissions policies
nationwide, perhaps shifting focus to low-income students or
low-performing schools.
Before opting to
enroll at Texas, Poole says he considered attending a mostly white
university in Iowa and a historically black college in Louisiana. The
college course he now values the most: an advertising seminar that he
attended along with a Hispanic, a female student-athlete and an
Asian-American. No one in that class was a "minority," he said, and
there was a range of perspectives.
Outside
class, Poole says his organization has experienced racial incidents. One
white student ran up in "blackface" to where members were gathered on
campus, daring them to respond. A legal brief filed by the National
Association for the Advancement of Colored People on behalf of Poole's
group lists other racial incidents in recent years, some of which led to
suspensions or public apologies.
"Racial diversity is a conversation we need to have," he said.
---
Not
since the tumultuous 1960s have U.S. ideals of equality been more
closely contested. Legal analysts say a Supreme Court holding of a
colorblind Constitution, either as a matter of law or practical effect,
could begin to emerge in two rulings on voting rights and affirmative
action due out by late June. A third ruling in the Michigan affirmative
action case will come next term.
The five
conservative justices who make up a majority could overturn the 2003
opinion or take a less dramatic step. The court may opt for tighter
restrictions that make it difficult for colleges to consider race or
rule narrowly that in a situation like Texas, its unique top 10 percent
plan is enough on its own to achieve diversity.
In
the court's other racial case, a conservative majority may declare the
1965 Voting Rights Act constitutionally flawed for its focus on racism
in the South but leave it up to lawmakers to sort it out.
The
court could also find a less sweeping, more technical way of deciding
the voting rights case, much as they did four years ago. Back then,
Chief Justice John Roberts suggested Congress should update the law to
reflect improved conditions in the South. Congress hasn't done so.
Prominent
legal bloggers are already warning of sharp public reaction, especially
if justices strike down federal voting protections.
"If
the court rules in a conservative direction, this will be a pivotal
year with regard to race in the Constitution and a year that could have a
devastating effect on racial diversity," adds Erwin Chemerinsky, dean
of the University of California, Irvine law school.
---
Has
the country put its racist past behind it? That question is at the core
of the challenge to the Voting Rights Act. The arguments before the
court raised questions about whether new, more subtle forms of voting
discrimination have taken the place of Jim Crow laws.
In
1870, the Constitution guaranteed blacks the right to vote. But for
many decades afterward, whites in the post-slavery South used poll taxes
and literacy tests to block African-Americans from voting.
That
changed in 1965 with enactment of the Voting Rights Act, which let
minorities file lawsuits against voter discrimination. Section 5 of that
law went even further, requiring nine states, mostly in the South, and
scores of counties and townships in seven other states, all with
histories of disenfranchisement, to get federal approval before making
any election change. Changes can include everything from a different
poll location to a new political redistricting map.
The
voting act was renewed by Congress in 2006 for another 25 years. The
Justice Department and the federal courts last year used Section 5 to
block voter restrictions in South Carolina, Texas and parts of Florida.
That saved hundreds of thousands of votes that would otherwise have been
lost in November, according to the Brennan Center for Justice. Many
were cast by blacks and Hispanics who turned out for Obama.
Lawyers
for Shelby County, Alabama, which is challenging Section 5, say the
tables have turned in a nation that is now much more racially diverse,
with minority voters possibly holding an unfair advantage.
"You
have a different constituency from the constituency you had in 1964,"
attorney Bert Rein told the justices. "Senators who see that a very
large group in the population has politically wedded themselves to
Section 5 are not going to vote against it."
Richard
Hasen, a law professor at the University of California, Irvine, and
author of Election Law Blog, says the "smart money" now is on the
Supreme Court striking down Section 5, leading to consequences for
minority voters such as "more brazen partisan gerrymanders, cutbacks in
early voting and imposition of tougher voting and registration rules in
the formerly covered jurisdictions."
But if
the court strikes down "a crown jewel of the civil rights movement," he
said, that could spark a public backlash that sends Congress back to the
drawing board, with any resulting new law applying equally to all
states.
