More than 400 incidents of hate and bias have swept America in the name of President-Elect Trump. Soon his administration will consider proposals that threaten the dignity, safety, and civil rights of millions of families, including mine. It’s no longer enough to vent on Facebook or love our neighbor while keeping to ourselves. We are called to become political. I’m going to fight — for my son and the next generation. Will you join us on the front lines as we fight for America?
Well, this year we vote. At some point, perhaps in the early morning hours of the day after the election, perhaps not for several days, we will find out who has been selected by our Electoral College system to serve as President for the next four years. I expect that the winner will not fulfill all the promises they have made. Nor will their presidency be as apocalyptic as the prophets of doom have predicted. Both of these candidates have virtues that are worthy of our admiration, and weaknesses that merit our concern. Nonetheless, based on the deluge of Facebook posts by my friends, I expect that while somewhere around a third of you will be ecstatic over the result, another third will be bitterly disappointed.
But this post isn’t really about who is President for the next four years. We’ll all survive that. This post is about our friends, our neighbors, the stranger we see on the street, the person driving in front of you whose bumper sticker you disagree with. It’s about all of us. For no matter who wins this election, the last election, the next election — most of us will still be here. There is an old saying that we get the government we deserve. And frankly, based on the vitriol and animosity I have seen in social media surrounding this year’s presidential campaign, we don’t deserve much.
The Facebooking of Politics
I have heard friends accuse friends of being bigots and racists because of who they are voting for. I have seen friends accuse friends of being “uninformed, misinformed, communists or opposed to this country’s values” if we vote for specific candidates. I have seen friends accuse friends of being haters, homophobes, misogynists, etc., if they vote for others. I have seen friends “unfriend” friends. Frankly, I’ve been tempted to unfriend some folks myself, although I have resisted the urge. I don’t know if we are reflecting the polarization of Washington, or if the Beltway reflects the hatred and spite of the American citizenry.
Here’s what I rarely, if ever, observed: People truly listening. People asking questions of people who view the world differently than them. People seeking to understand.
To paraphrase G. K. Chesterton, it’s not that we have tried to engage in gracious, thoughtful political dialogue and found it wanting — it’s that we have found it difficult and not tried. We have told people what they think rather than asking them. We have refused to believe their reasons, choosing to trust our own stereotypes. We haven’t listened to their stories — we’ve made them shallow caricatures in a story of our own creation.
I expect I have noticed this acutely the past several years during the 2008 and 2012 elections, because those were the first elections when so many of us were on Facebook in a presidential election year. But of course, politics, not to mention religion, has been a taboo topic of discussion for years, long before the Internet. It is tragic that those two disciplines that capture the depths of human values and meaning — religion and politics — are considered off-limits for many of our conversations. I expect much of this revolves around our need to be right, and our fear of people who see the world differently.
I’ve given this a lot of thought, as a friend of mine has continually jabbed at supporters of the other candidate, goading them to respond to some of the more troublesome aspects of their candidate’s platform. Always done in a shaming, blaming way. Not surprisingly, no one took my friend up on the offer to explain.
But let me make a few friendly suggestions about how we might do this better four years from now.
The Wisdom of Listening
First, ask questions. And listen. Really listen. Don’t just wait for the person you disagree with to take a breath so you can shoot down their position. Listen seeking to understand. Assume that they are a person of good faith rather than an evil, bigoted hater. Don’t tell them why they’re wrong. Try to understand why they view the world the way they do. Affirm aspects of their values and perspectives that you can respect and admire, even if you might view things differently. Make it safe for them to share their deepest hopes and fears with you. In the Old Testament, Proverbs 18:13 says, “If one gives an answer before he hears, it is his folly and shame” (ESV). Are we practicing the wisdom of listening?
You will find that when you have asked questions, listened actively seeking to understand, and affirmed common ground, that you will develop trust. You will also have created a space where they may ask you questions and give you the same respect that you have shown them. They may even be willing to express respect for some of your values and vision.
Confession Is Good for the Soul
Then, admit to them the concerns you have about your own candidate/party, acknowledging that candidates, like the rest of humanity, have their weaknesses as well as their strengths. Then, and only then, might they feel safe enough to address the weaknesses in their candidate/party that trouble you. Few of us embrace the entire platform of the candidate we vote for. You may not change your friend’s vote. But you will have deepened a friendship. And opened a mind. You cannot wait for them to take the first step; you have to do it.
And whoever wins this election, be open to the possibility that some of their policies, all of which have been informed by advisors and embraced by close to half the population, might actually succeed. Hope and pray for the success of the candidate, even if you’re skeptical. Be more concerned about the good of the country than the success or failure of political parties.
When we remain open to the virtues and vision of our elected officials’ leadership, they may be more willing to listen to our legitimate concerns about those who might get left behind by their policies.
And maybe, just maybe, this sort of political engagement will catch on.
These are exciting yet tumultuous times politically, in no small measure because of the vibrant and insistent involvement of black women. We see history being made by The “Georgia Five,” the record-breaking group of black women vying to fill statewide office posts as lieutenant governor, secretary of state, insurance commissioner, state schools superintendent, and labor commissioner. Political advocacy groups run by and focusing on black women are hotly contesting voting rights attacks in states as politically disparate as North Carolina and Wisconsin. Even young black women are finding their voice through advocacy groups like Million Hoodies (@MillionHoodies) and Black Youth Project (@BlackYouthProj), both of which have taken leadership roles in the Trayvon Martin and Michael Brown tragedies. To fully understand this dynamic, one has to go back two election cycles.
The Pew Research Center declared the 2008 election the most “racially and ethnically diverse in U.S. history.” Blacks represented 12.1% of all voters who cast a ballot, and had a 65.2% voter turnout rate (less than one percentage point behind the white voter turnout rate) which measures the percentage of all eligible black voters who actually voted. While impressive, some discounted the importance of these statistics, reasoning that we should expect black voters to run to the polls to support “their” black candidate. But there was more: at 68.8%, black women led all demographic groups with the highest voter turnout rate among eligible black female voters—for the first time ever. People seemed stunned at this turn of events. Groupthink and black politics aside, no one really expected this result from the most-overlooked, least-consulted voting bloc in our country. Black women walked neighborhoods, called friends and family, handed out leaflets, donated $5.00 at a time each payday, both informally though social and personal networks, and formally as part of local campaign offices. Obama infused hope in hearts and homes where it had been scarce for too long.
By the time the 2012 election came, support and naïve enthusiasm might have faded somewhat but again black women were the darlings of election night. This time around, the results were even more decisive. Blacks had the highest percentage of votes cast for Obama—93%, and of black women who voted, 96% voted for Obama. David C. Wilson, political science professor at University of Delaware, concludes, “These very basic points call into question what the 2012 election was really about: Was it about the economy, or was it really about the “type” of leadership desired by a new coalition of American voters largely consisting of progressive but not necessarily ‘liberal’ thinking and acting racial minorities?” “Progressive but not necessarily ‘liberal’ thinking and acting” aptly describes where black Christian women (BCW) often find themselves, making a variation of Professor Wilson’s question a good one to ponder: What are politics and elections really about for us? Are they about giving white America political comeuppance for the inexcusable way blacks and other minorities are treated in this country? Are they a way to push to the forefront our concerns about domestic violence, racial disparities in health and criminal justice, adequate and affordable housing and daycare, and living wages? Can they, and should they be a means of witnessing to the world around us the truth of the gospel and its relevance to life’s challenges and oppressions?
As black women continue to rise in political influence, BCW are increasingly forced to consider questions like these, culminating in one even more difficult: How do we politically engage in a biblically faithful way when neither Democrats nor Republicans, neither white evangelicals nor the weakened “Christian right” completely reflect all of our values and beliefs? Black women might seem the next best hope, but troublesome, too is the ascendance of black women who label themselves as political progressives but who act and think in line with traditional liberal platforms and positions. The problem is not in supporting issues that relate to the black part of us. Not many black women would argue against fair housing, equal pay for equal work, equality under the law in the justice system, or voting rights for all. The conundrum comes when we consider issues like marriage equality, sexuality and contraception, abortion, and others typically categorized more as theological rather than political.
BCW acknowledge the responsibility to maintain a faithful Christian witness across the full spectrum of political policies and issues but too often it seems easier said than done. For those who desire to find a more fully integrated political sweet spot, a few things might help ease the psychological and spiritual dissonance that comes from trying to honor all parts of the BCW identity—female, black, and Christian.
First, decide that non-involvement is not the answer. Sometimes concern defaults to avoidance because engagement focuses on the areas of common ground between BCW and those seeking their support. This approach often results in silence on vital social and cultural problems. Especially on the tough issues, BCW cannot be silent. The BCW voice and viewpoint need to be part of the political discourse in homes, churches, city halls, and on the national stage.
Second, carefully investigate the policy positions and agendas of prominent advocacy groups led by black women and others. Get familiar with language and lingo. For example, marriage equality and reproductive justice/reproductive health are common phrases used in support of same-sex unions and abortion. For example, Higher Heights for America and Black Women’s Roundtable are two highly visible and active groups. They both support positions that are not problematic, and some that are. Higher Heights describes its mission as investing “in a long-term strategy to expand and support Black women’s leadership pipeline at all levels and strengthen their civic participation beyond just election day.” This mission is supported by its #BlackWomenLead, #BlackWomenVote, and #SundayBrunch initiatives, all focused on increased and informed voting by black women. But curiously, it also issued a report, “Black Women’s Response to the War on Women”, in which support is evidenced for abortion. Another black woman-led group, Black Women’s Roundtable, a program of the National Coalition on Black Civic Participation, “is viewed as being among the most powerful coalition of African-American women in the country, mainly because of the clout held by its membership”. In 2013, its president Melanie Campbell participated in high-level fiscal cliff discussions at the White House, and Campbell was also present at a February 2014 meeting in which civil rights leaders presented a document outlining the black community’s agenda for jobs and freedom. In March of this year, the Roundtable issued a groundbreaking report, “2014 State of Black Women” in which it lists as a policy agenda item: “End war on women in the states including reproductive justice and women’s right to control their own bodies.”
Third, focus more on local political involvement. National groups strive to appeal to the broadest constituency possible, which often results in policy positions that most BCW do not support. But what can’t be supported nationally can be impacted locally. Research opportunities in the community– whether through churches, sororities, or other community-based organizations—to engage with those issues that require biblical fidelity and can better reflect the obligation to do justice in all areas of our political participation.
Just as “all politics are local,” all issues have a root or some relation to one’s lived theology, and black Christian women must step in to the gap between progressive and liberal politics.
Congress and the Obama administration are wrestling with how to deal with the surge of Central American children fleeing escalating gang violence in their native countries and crossing the US-Mexico border into the United States to escape. While it is true that violence has skyrocketed in recent months in Guatemala, Nicaragua, Honduras and Panama, it has been an ongoing and pervasive problem in those troubled developing nations. But what is really driving the influx of children, in particular, are lawless human traffickers purposefully spreading misinformation about the United States’ deferred deportation policy for children of undocumented immigrants currently in the US who were brought here by their parents.
In June 2012, frustrated about a contentious Congress’ inability to pass a comprehensive immigration reform package created by the Democrats, President Obama issued an executive order that instructed the Department of Homeland Security and the Immigration and Customs Enforcement (ICE) agency not to deport certain immigrant children here unlawfully. Those children who qualified under the “Deferred Action for Childhood Arrivals” policy and came forward were given a temporary status and a work visa. However, the status only benefited those who have continuously resided in the United States since June 15, 2007 and was present in the US on June 15, 2012. New border crossers do not qualify.
Facts don’t matter to opportunistic smugglers who used some of the language in the policy to convince parents that the US was accepting children to immigrate there. Their misinformation campaign persuaded parents to willingly pay the smugglers to shepherd their kids into the US. Since October 1, an estimated 57,000 children have crossed into the US.
Immigration is that contentious issue that no one wants to touch and it has also incensed many African Americans who say they are frustrated that on the same week there was record gun violence deaths in Chicago, the nation shifted to focus on children of “outsiders.” Consider that the White House requested an estimated $3.7 billion funding package to staff more agents, judges, and workers to process the children and return them to their homes. The money would be to supplement depleting resources and funds of an agency going broke, and to expedite the return of the kids.
To have them stay too long during processing, Nancy Pelosi and other politicians have said, would send the dangerous message that all they need to do is cross the border and they’d get to stay for a couple of years and possibly slip away into the shadows. That outcome would open the flood gates to more unaccompanied minors in the future. A senior U.S. Immigration and Customs Enforcement officialThe Washington Post the goal is to process the immigrants and have them deported within 10 to 15 days to send a message back to their home countries that there are consequences for illegal immigration
The passions that enflame over immigration is perhaps why African and Caribbean undocumented immigrants in the United States have stayed quiet on the issue. You don’t see their communities joining with the Latino and Hispanic advocates demanding immigration reform.
“There is reluctance on the part of the Caribbean community to become too vocal on the topic out of being too associated with the challenges and misconceptions of ‘undocumented’ Latino – particularly Central American – immigrants in the West,” said veteran political strategist and commentator Charles Ellison. “They don’t view themselves that way and they don’t want the society viewing them that way either.” Africans do rally immigration reform issues outwardly, at times, Ellison added. And in recent weeks, we have seen some African-American leaders such as Al Sharpton call on African Americans to join the Latino American fight for a fair immigration policy.
Right now, as civil rights icon Angela Davis put it in recent years, there is somewhat of a disconnect between the Black struggle for equality and that of Latinos where a lot of Black people feel like: “That’s not my fight.”
A recent public policy poll indicated that a majority of blacks, 58%, support the controversial Arizona immigration law that would have permitted the police to request verification of the legal residence or citizenship status of motorists stopped for routine traffic violations. But leaders like Sharpton are urging African Americans to consider Black migrants from Africa and the Caribbean who account for 15% of the immigrant population. Around 400,000 black immigrants in the United States are here without legal status. Sharpton has also said on his radio and television show that the black immigrants would likely become allies to the plight and cause that African Americans face.
Ellison agrees with Sharpton’s perspective.
“There are natural connections between the Diaspora migrant communities and the African-American community,” Ellison added. “Plus, he [Sharpton] sees an opening here to increase African American or Black voting numbers – right now, census counts are potentially low-balled since there are a lot of African and Caribbean migrants that are not lumped together with Black Americans – some have said that the total Black population may be on par or even slightly greater than the Latino population if you count African and Caribbean migrants. “
But, tension is still there.
“African Americans highly respect Caribbeans and Africans, but you can sense envy because there is the perception that Caribbean/African migrants come to the U.S. and are so successful so fast,” added Ellison who writes forseveral websites including The Root and The Philly Tribune. “Part of that is you have modern Diaspora and island societies that are, for the most part, all-Black and run by Black people—for better or for worse—and that has an impact on thinking, confidence levels, motivations.”
Meanwhile, Ellison notes that African Americans have had to deal directly and consistently on a personal, psychological, emotional, economic, cultural and political level with Whites for centuries.
“That has an impact whether we admit to it or not,” he added while noting that African and Caribbean immigrants would quickly criticize Black Americans for not taking full advantage of the opportunities here in the states or certain of ‘their ways.’”
Still, he doesn’t think it’s significant enough to be destructive.
And the likelihood of this group becoming allies with and empathizing with struggles of African Americans can be seen in the fact that Black immigrants, being the most educated of all immigrant groups, still face high levels of unemployment and struggle, possibly because they encounter discrimination and racism that African Americans have been dealing with all their lives here in the US.
The synergies and natural connections are there. Now if only the two communities can find their way to support one another and jump aboard the immigration reform fight bandwagon there could be mutually beneficial progress.
And I charged your judges at that time: Hear the disputes between your brothers and judge fairly, whether the case is between brother Israelites or between one of them and an alien. Do not show partiality in judging; hear both small and great alike. Deut 1:16-17a NIV
In July, President Obama asked Congress for $3.7 billion to confront the issue of unaccompanied children crossing the border into Texas from Central America. World Relief predicts that 60,000 unaccompanied children are expected to cross the border this year alone. That is just the latest news concerning “illegal” immigration in our country.
Over the past few decades, immigration and immigration reform have been one of the most challenging political issues. With the media sound bites, our misinformed table conversations, and sometimes inappropriate rhetoric that we hear from the pulpit, it is imperative that all professing Christians become more educated on this critical humanitarian issue. Together, we must determine how the Bible might call us to respond to this issue not only as citizens of America, but rather as citizens of God’s kingdom.
At first glance, it may appear that immigration reform is simply a question of border crossings and national security. However, a closer look reveals that it is also a conversation about extreme poverty, greed (including exploitation and economic injustice), violence, a broken judicial system (at least concerning this issue), and human trafficking. In spite of this reality, immigration reform has stalled in this Congress, and therefore, will be a highly contested issue of the next political elections.
The book Welcoming the Stranger: Justice, Compassion & Truth in the Immigration Debate by Matthew Soerens & Jenny Hwang answers many of the fundamental questions in this debate. (The authors refer to foreigners as “undocumented” rather than “illegal,” and while I agree that a person’s citizenship does not define their identity, I have chosen to use the reference “illegal” in this article simply because it is the language most commonly used in journalism and is therefore, readily identifiable to the reader.)
Know the Language
Alien – a person from another country
UAC – unaccompanied child, a child who has been sent to cross the U.S. border illegally by an adult who is a citizen of another country
“Green Card” – the legal document that identifies a foreigner as being “legally admitted to live permanently in the United States (Soerens & Hwang, 68).” The green card can be obtained through four processes: employment-based system (normally reserved for a limited number of highly technical degrees), qualifying familial relationships or reuniting immediate family with those who are U.S. citizens or Legal Permanent Residents (this option gets very complicated), increasing diversity from specific countries that historically have a lower immigrant population in the United Sates
Amnesty – the act of a government to pardon (or set a guilty party free with no punishment) a large group of individuals
The Myth: All illegal immigrants come from Mexico. The truth: A significant portion of undocumented workers come to America from places like Asia, Europe, Canada, and Africa.
The Myth: Illegal immigrants do not want to go through the legal process for immigration. The truth: “Most undocumented immigrants are undocumented not because they choose to remain undocumented, but because there is no process for them to enter legally or obtain legal status (Soerens & Hwang, 65).”
The Myth: Illegal immigrants or undocumented workers do not pay taxes. The truth: The majority of undocumented workers use fake social security numbers to obtain jobs at places like your local convenience store or fast food restaurant where payroll taxes are deducted from their paychecks. These taxes—in the upwards of $6 billion each year—are received by the government and benefits American citizens. In a way, these deposits contribute to the U.S. economy because we have people paying significantly more into the system, when they are not legally qualified to reap Social Security, Medicare, or the majority of federal and state government benefits.
The Myth: The primary allegiance of American Christians is to our country, its values, the safety of ourselves and our families, and the Constitution of the United States. The truth: As Christians, we are citizens of God’s kingdom and our primary authority is to the truth we find in God’s Word which specifically calls us to one commandment—love God and love our neighbors. As citizens of God’s Kingdom, our primary responsibilities are to share the good news that Jesus saves, make disciples of all nations, and complete the work that God has assigned for each of us.
There are an estimated 11 to 12 million people living and working in the U.S. without valid immigration status (Soerens & Hwang, 12)-meaning they have no legal right to be in America, because in many cases there is currently no way to regularize their status. When politicians began to discuss options for regularizing foreigners in this category, the charge of amnesty eliminates all hope and the dialog quickly breaks down. It is important to note, however, that according to its definition, no one is suggesting that these foreigners get a free pass with no penalty. What has been proposed, however, is a comprehensive or more effective immigration reform process that includes the redemption of this group of individuals.
Approximately half of the “illegal” immigrants actually come to America legally by securing a temporary visa, but “overstay their welcome” by not returning to their home countries at the designated times, thereby transferring them into an illegal or undocumented status.
People normally migrate to the U.S. illegally because they are facing severe conditions of extreme poverty or lack of work in their home country, and are looking to come to the land of opportunity to make a better life for themselves and their families, and there is currently no legal way for some of them to come.
Brief History and Current State of Immigration in America
The America that we know and appreciate has always been a country of immigrants. Like the Israelites, we have left historical documents unread or simply forgotten the history that has essentially made this country the nation that it is today. Pilgrims immigrated to this land. Enslaved Africans became immigrants of this land. Approximately twelve million immigrants came to America through Ellis Island, New York in the late 1800s and early 1900s. These immigrants arrived, were processed, and given American citizenship immediately. So when people say that immigrants ought to come to our country “the legal way,” they are generally referring to this brief heyday of quick and nearly effortless immigration processing which no longer exists. A detailed reading of American immigration history reveals country biases and class discrimination. While the rules of legal immigration have changed (many would argue for the worse), some of the inconsistencies concerning country favoritism and class discrimination have not. America wants to welcome highly educated immigrants who may be researchers, doctors or engineers, but our politicians clearly don’t want to welcome more poor people, who have the same hopes for their sons and daughters as any Americans does.
As a result, there are several categories of foreigners residing in America:
1. Refugees or asylees (temporary category) are foreigners who are approved by the U.S. and United Nations to flee their country because of documented racial, religious, or national fear or persecution. Foreigners who fall into these categories are generally approved to receive a green card.
2. Legal Nonimmigrants are foreigners (include tourists, temporary workers or students) who visit America temporarily on a nonimmigrant visa for a finite period of time.
3. Illegal Immigrants: When nonimmigrants remain in the country beyond the expiration date on their temporary visas, they become undocumented or “illegal.” Additionally, obtaining a temporary visa costs money, so severely impoverished foreigners are locked out of the opportunity to gain a nonimmigrant visa which would help their families remain in their home country. Those with no hope and without options come to this country illegally. Most often, they work hard so American business owners can exploit them, Americans can benefit from cheap products, and the American government can receive tax deposits.
4. Lawful Permanent Residents possess green cards and have the right to petition for immediate family members (including spouses, unmarried children) “to immigrate to the U.S. as lawful permanent residents…Lawful Permanent Residents can apply to become U.S. citizens after having resided in the U.S. lawfully for four years and nine months, if they meet all other requirements for naturalization, including passing a test in English (with limited exceptions) of U.S. history, civics and government, and pay a [significant] fee. Lawful Permanent Residents married to a U.S. citizen may apply earlier, after two years and nine months (Soerens & Hwang, 68-69).”
5. U.S. Citizen – After completing the above mentioned process and swearing an oath of alliance to the United States, Lawful Permanent Residents can become naturalized U.S. citizens with all rights and privileges. Based on the 14th Amendment, all children born in the United States are declared American citizens. This category also includes children who are born to an American citizen who may be residing outside of the country (ex. American military personnel).
In short, the entire process for legal immigration is limited, lengthy—anywhere from five to 20+ years—and costly (the process is largely paid for with immigrant families’ money, and not U.S. tax payer dollars). It is important to understand these definitions, myths, facts, and history, when we hear sounds bites like, “Immigrants need to come the legal way” or “Immigrants need to wait their turn in line.” The reality is that for many immigrants, there is no line to get in because they “have no qualifying family member who is a U.S. citizen or Lawful Permanent Resident (Soerens & Hwang, 76).”
Biblical Points to Ponder
*Many of our Old Testament heroes of the faith were what we would refer to today as immigrants, sojourners, or aliens at some point in their lives, and God used them in light of this truth.
*God reminded the Israelites throughout their history to remember the alien, widow, and orphans among them, to treat them fairly, and to teach them God’s ways so they too could enjoy the Lord’s savior and prosper.
*The New Testament is very clear that God does not determine a person’s value by their racial or ethnic composition, for we become one, united people through Christ Jesus.
Romans 13 is clear that we should submit to the authority (particularly governmental and military) that God has placed over us to protect us, and part of their responsibility is be conscious citizens and exercise righteous judgments under God’s authority.
*Christians are called to love their neighbors, and Jesus’ earthly ministry makes it clear that our neighbors include those who may be ethnically different from us, those who are societal outcast, or physically oppressed, downtrodden, or impoverished.
*The teachings of the Apostle Paul affirm that believers in Christ are called to show concern for others, particularly for those who are considered weaker in the Christian body.
*The doctrine of grace reminds us that we don’t work to earn any spiritual thing in this life, least of all God’s favor or his salvation. In the same manner, it is only by his grace that we have been born in the country that we are, at this opportune time in history. Christians who hold to the authority of the entire Bible understand that through Christ, we claim to the blessings of Abraham’s covenant, specifically that we are blessed because God desires and indeed intends to use us to bless all nations and the entire world.
Consider how you can be a truth teller and change this conversation.
Other Resources for Consideration:
“Immigration: Tough Questions, Direct Answers” by Dale Hanson Bourke
“Christians at the Border: Immigration, the Church, and the Bible” by M. Daniel Carroll R.
“The Lamb’s Agenda: Why Jesus is Calling You to a Life of Righteousness and Justice” by Samuel Rodriguez
United States Citizenship and Immigration Services (of the Department of Homeland Security)
Evangelical Organizations Working on Immigration Reform:
Conservative Supreme Court Justices Affirmative Action Case Also Attempts to Alter the Equal Protection Clause
On Tuesday, the Obama Administration issued guidance via a “Dear Colleague” letter to colleges and universities, clarifying for them that the latest Supreme Court Affirmative Action decision issued last month still permits schools, colleges and universities to consider race in admissions decisions under certain conditions.
But what the letter top Education and Justice department officials sent to elementary, secondary and universities did not say was that they have to bide their time and prepare for more challenges. Indeed, the recent case represents a further chipping away at the interpretation of the Equal Protection Clause of the 14th Amendment.
In the case handed down on April 22,, the majority conservative justices on the bench sought to protect a voter referendum forbidding the University of Michigan from using race-conscious admission policies arguing that the 14th Amendment requires the government to treat all citizens equally. The language from the Equal Protection Clause of that amendment, opponents of Affirmative Action argue, also prohibits discrimination against Whites and Asians, in many cases of competitive admissions where there is an abundant number of Asian-American college applicants surpassing their proportion in the US population.
Attempts to Change The Equal Protection Clause
But this is a newer, modern reading of the 14th Amendment which was adopted after slavery and was relied upon to dismantle state-sanctioned Jim Crow practices of the 1960s. It was never meant to protect Whites and as a case referenced in the opinion notes, whites haven’t needed protection from racial discrimination, historically.
Yet, over the past few decades, there has been a concerted effort in a series of Affirmative Action challenges to change the Equal Protection Clause, by turning it on its head and using it to dismantle race-conscious policies in school admissions (Bakke, Michigan, insert others) and government contracting (Metro, Adarand). The new interpretation seeks to prohibit minorities from benefiting from preferences thought to harm the majority race.
Recall the last time the U.S. Supreme Court made a decision in a case involving race-conscious admissions was in the University of Michigan Law School case in 2003, Grutter v. Bollinger. In that case, the Court decided that numerical set-asides to achieve racial diversity in college admissions and quotas was impermissible. Yet, in a 5-4 decision, the majority, more liberal justices found that diversity is a compelling government interest and that schools can craft admission policies that are not quotas to achieve diversity. Once a state school studies its admission history and determines that all other race-neutral options have failed to achieve diversity.
The Schuette Case
And it was that case that precipitated the referendum that was the center of this Schuette case. That holding emboldened parties and institutions with deep pockets who are opposed to Affirmative Action to take steps to get a referendum on the ballot in Michigan and amend the constitution to prohibit race used in Admissions. A coalition which gave itself the ingenuous name, Michigan Civil Rights Initiative, reportedly so it could convince some black and Latinos to help gather the 260K+ signatures needed to put an initiative on the ballot, Proposal 2. This initiative would remove the ability for university administrators and boards to adopt admissions policies that consider race.
To much surprise, because early indicators suggested it was unpopular, the initiative passed. It is now Article I, Section 26, an amendment to the Michigan Constitution. Once passed, the anti-affirmative action groups challenged the Michigan university’s admissions policy for violating the state constitution.
The Federal Appellate court in the 6th Circuit struck the amendment on appeal for going against a Supreme Court case which prohibits states from putting up higher hurdles for minorities to participate in the political process.
The court was referring to the “political-process doctrine” which permits the judiciary to strike an action that changes or adds an additional layer of processes in a way that denies minorities the ability to participate in democracy equally and fairly. This treatment in race and politics was created by two past US Supreme Court cases: Washington v. Seattle School District and Hunter v. Erickson.
In Hunter, a referendum voted by the majority of voters in the city of Akron, Ohio attempted to shut down an anti-discrimination in housing ordinance passed to address widespread racial discrimination in housing sales and rentals. The referendum amended the city charter to remove the anti-discrimination law. Similarly, in Seattle, shortly after desegregation efforts were under way in Washington in the 1960s, like many other cities back then, the city amended its laws to stymie bussing and other desegregation efforts by the school board. Both cases were overruled under that doctrine.
Justice Sotomayor Reaches Correct Conclusion
Justice Sotomayor, in an opinion to this case, agreed that the referendum in this Michigan case was another example of the majority using their numbers to make it harder for minorities to get a law passed that would benefit them. Given that race-conscious admission policies only benefited Black and Hispanic college applicants, it would be a hard haul for that group to successfully get its own ballot initiative passed in order to amend the constitution. Meanwhile, Sotomayor noted, recipients of legacy admissions or athletic scholarships only needed to convince the college governing bodies if they wanted to promote admission policies that impacted them. She argued that the Supreme Court owed it to itself to follow its own precedents or findings from recent cases and apply them to this case and consequently strike the amendment. But in this case the majority in an opinion written by Justice Kennedy focused more on the argument that voters have the right to overrule their government, and based on that reasoning reversed the federal court and upheld Michigan’s anti Affirmative Action amendment in its Constitution.
But Sotomayor was right.
The case is not about whether the framers of the Constitution imagined a time when the voters would be able to interject themselves in the process and create law directly rather than through elected officials, but about the burden it created. (This reasoning espoused by the swing vote in this case, the usual liberal Justice Breyer). For minorities who would benefit from race-conscious policies to undo the amendment, they’d have to undergo the costly and burdensome ballot initiative process. That is the change in process and burden that triggers the political process doctrine that past US Supreme Courts have used to strike down referendums like this one.
While democracy does in fact empower majority rule vote, historically, in US history and judicial jurisprudence, courts have and continue to curtail when the majority exercise their power in numbers to suppress or oppress minorities based on race, Sotomayor opined.
Unfortunately, for Affirmative Action proponents, Sotomayor’s opinion was the minority opinion. Justice Kagan had to recuse herself because she worked on the case while Solicitor General before being seated on the Bench, leaving only Justice Ginsburg, the only other woman on the Court to side with her.
And as Justice Sotomayor wrote in her dissent, in order for them to distinguish the Seattle and Hunter cases, they have to acknowledge first that the political process doctrine existed to empower the judiciary to stop abuse of power by the minority – and that the majority’s decision isn’t always in the best interest of society.
Scalia Would Overturn all Past Decisions Recognizing Racial Impact in Laws
And that is why, perhaps, Justice Scalia brazenly wrote in his separate concurring opinion that if it were up to him he would overrule those laws altogether. The opinion acknowledged that a race-neutral law could have a disparate impact on minorities yet Scalia disagrees, or doesn’t want to accept that some laws do in fact negatively affect one racial group more than another. Instead, he thinks that a law must be crafted to intentionally harm minorities, not simply have a disparate impact.
To admit that would require him to accept a host of other disparities in our criminal and civil justice system and it’s clear he wouldn’t want to do that.
Instead, Scalia used his concurring opinion to further expound upon his own personal disdain and animosity for any law that benefits minorities, suggesting “it is hotly disputed whether the practice of race-based admissions is ever in a minority’s interest.”
He further wrote that the Equal Protection clause wasn’t created to protect groups of people but the individual. Except when that individual is black or Hispanic and he needs protection from a policy that targets him personally as an African American or Latino, then what?
The fact remains, the framers were indeed protecting one group, Black Americans and that was their intent, and a man who usually insists on staying close to the intent of the framers is willing to bend in this case and contort the intent of 14th Amendment so it is a law to protect Whites, not as initially intended.