Every child learns about Dr. Martin Luther King Jr. and the role he and others like Rosa Parks played in the fight for racial equality, culminating in the ‘final’ victory when the Civil Rights Act of 1964 became law.
It’s a tidy narrative, but it’s wrong.
Despite fifty years of the Civil Rights Act and a host of anti-discrimination legislation, minorities—in particular, African-Americans—still face significant disadvantages in social mobility from the day they are born. Race-based affirmative action policies arose out of a desire to remedy the legacy of oppression that has held minorities back, and these policies have had some success. But the sad truth is, they don’t help enough people, particularly the ones that need it most: low-income communities of color.
The recent ruling in Fisher v. University of Texas II—preserving race-based affirmative action policies in university admissions—may appear to be a huge victory. But after examining these admissions policies in the light of the original economic goals of affirmative action, Fisher II looks like a hollow victory. Building on the June Utah v. Strieff decision, which upholds the legality of a form of police search that is disproportionately used to punish low-income people of color, it becomes clear that too often the law and justice are not the same.
Protecting Privilege, Criminalizing Poverty
It speaks volumes that the two big rulings affecting the black community have an impact substantially linked to socioeconomic status.
The favorable ruling on affirmative action in Fisher II preserves the use of race in college admissions, but in terms of results, it simply protects the privilege of the small part of the nonwhite population that is eligible for college. Strieff, on the other hand, nearly guts Fourth Amendment protections for anyone (mostly poor people of color) discovered to have an outstanding warrant—even if it’s for an unpaid parking ticket. Under Strieff, just having an arrest warrant—before any guilt is established—opens the door to an admissible warrantless search where new charges can originate.
Justice Sonia Sotomayor’s impassioned dissent captures not only the current climate on race relations, but also the sheer indignity of a ruling that “says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”
It might be tempting to “pretend that the countless people who are routinely targeted by police are ‘isolated,’” but the recent Justice Department report on Ferguson, Missouri revealed otherwise. African-Americans and other minorities stuck in poverty-stricken areas are specifically targeted by the police and are more likely to be fined. Most are unable to pay such fines because of their socioeconomic status, and are punished with additional fines or even jail sentences as a result.
The repercussions are long-lasting. Many forego basic necessities like food and hot water to pay the fines and court fees, or take high interest payday loans to make ends meet, trapping them in a cycle of debt.
The repercussions are long-lasting. Many forego basic necessities like food and hot water to pay the fines and court fees, or take high interest payday loans to make ends meet, trapping them in a cycle of debt. The formerly incarcerated—around 40 percent of whom served time for nonviolent offenses—have a difficult time getting jobs upon release.
Despite the success of the growing ‘ban-the-box’ movement of creating legislation to prevent employment discrimination against ex-convicts by removing requirements to disclose criminal history, a recent study from the University of Michigan found that private employers subjected to such ‘ban-the-box’ policies reacted by calling back African-American and Hispanic candidates at significantly lower rates than their white counterparts, who saw an increase in callbacks from 7 percent to 45 percent.
This institutionalized criminalization of poverty is tearing families, communities, and the nation apart. The problem with Fisher II is that it’s preserving a token version of affirmative action reflective of the disconnect between government—the Supreme Court in particular—from the socioeconomic issues affecting racial minorities and other marginalized groups.
Affirmative Action Was Meant to Be Economic Justice
“When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the ‘unalienable rights’ of ‘life, liberty and the pursuit of happiness.’”
The crowd of over a quarter of a million people who heard those rousing words spoken by Dr. King in his famous I Have a Dream speech in 1963 were at an event organized by civil rights and labor groups. It was called the March on Washington for Jobs and Freedom.
At the core of the long fight for racial and social equality during the movement there had always been one goal: economic equality. Civil rights leaders and their allies in the labor movement understood that racism and economic inequality were intimately linked in American history. Before the nation even existed, racism was a tool to justify and codify abuses of the African-American community in all aspects of social, political, and in particular economic life.
The goals of affirmative action policies are two-fold. The first is to level the playing field and give people of color, especially African-Americans, a chance to achieve the social mobility promised to all Americans. The second, as emphasized by the government, is to serve “the general interest and welfare of the United States to promote its economy, security, and national defense through the most effective utilization of all available manpower.”
In order for affirmative action policies to be implemented, there needs to be a climate that fosters political will on both counts.
In order for affirmative action policies to be implemented, there needs to be a climate that fosters political will on both counts. It’s therefore not surprising that such policies were first used during the Great Depression—a time of national crisis when it became essential for the nation’s survival to promote economic opportunities across the board. New Deal programs including the Works Progress Administration (WPA) had hiring quotas for African-Americans, though they were still largely limited to low-skill and low-wage jobs as a result of their low-quality education.
The Failure of Race-based Affirmative Action in Higher Education
Research shows wages and employment opportunities increase as education levels increase, particularly for minorities, so it makes sense to look at improving access to education as a way to level the playing field.
There is no denying that race-based affirmative action policies in higher education have helped many African-American students achieve better outcomes, but as Century Foundation fellow Richard Kahlenberg points out, the impact of race-based affirmative action has largely benefited the wealthy who already have access to better resources and economic opportunities than the rest of the population.
Decades of discriminatory housing policies made sure “undesirables”—in order of descending desirability: “Greeks, Russian Jews of the lower class, South Italians, Negroes, Mexicans”—were confined to areas where they wouldn’t be a drain on the resources Americans needed. This had the effect of creating massive concentrations of poverty that to this day disproportionately affect African-American and Hispanic populations in the United States.
Historically, both race and poverty have been impediments on the road to opportunity and equality. Progressive efforts that focus solely on race do little for doubly-disadvantaged low-income minorities.
Of course, even if a student benefits from affirmative action in admissions, there is no guarantee that the end result will be increased economic opportunities—for anyone.
Black, Hispanic, and low-income students in particular have the largest number of student loans and lowest graduation rates, meaning they’re more likely to pick up debt, but not the degree. When students are unable to enroll in college without being sentenced to a life of debt slavery like their sharecropper ancestors, it is clear that race-based affirmative action has done far from enough to create opportunities for all but a few.
Fisher II is a victory but, because its benefits are reserved for a privileged group, it’s not a large one. Strieff on the other hand, is a loss not just for the Fourth Amendment, but for the millions in poverty across the nation who will feel the effects of the decision for generations to come.
Just as Dred Scott, Buck v. Bell, and Bowers v. Hardwick have shown us, when the Supreme Court upholds the legality of a government action, it can be on the wrong side of history.
It falls to policymakers to strengthen the protections or correct the inequities in our society and acknowledge that justice is an American ideal reaching far beyond the courthouse steps.
Ultimately, the Court only has the power to review the law, not to make it. It falls to policymakers to strengthen the protections or correct the inequities in our society and acknowledge that justice is an American ideal reaching far beyond the courthouse steps.
If we as a nation are serious about restoring the promise of meritocracy in America to all—black, white, and everyone in between—affirmative action policies should not begin at adulthood, after the train leaves the station, nor should affirmative action be confined to one policy area.
Education is an answer to the problem of inequality, but it is not the only answer.
It’s time to rethink how we view our core identities—class, race, gender, sexual orientation—and develop policies that understand and address the interplay between the legacy of redlining, housing policies, infrastructure, policing, wages, and education from pre-K to the university level in perpetuating the blight of economic inequality.