‘Alive but Ailing’
“Affirmative action is alive but ailing, the idea of ‘critical mass’ to measure racial diversity is in very critical condition, and a nine-year-old precedent may have to be reshaped in order to survive. Those were the dominant impressions at the close of a one-hour, nineteen-minute argument in the Supreme Court Wednesday,” said veteran U.S. Supreme Court reporter Lyle Denniston at SCOTUSblog, after the Court heard arguments in the case of Fisher v. University of Texas at Austin.
Embarrassed for the Court
“Critical mass” is the idea that there need to be enough students of color attending a school to overcome a sense of “racial isolation,” explained Linda Greenhouse at The New York Times. Greenhouse was embarrassed for the court after acquainting herself with its questions, she said. “Of the four justices most intent on curbing or totally eradicating affirmative action — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Samuel A. Alito Jr. and Clarence Thomas — the three who spoke (minus Justice Thomas, of course) failed to engage with the deep issues raised by Fisher v. University of Texas. …It was impossible to avoid the conclusion that ridicule rather than a search for understanding was the name of the game.”
Plaintiff ‘Failed to Meet Threshold’
The plaintiff in the case, Abigail Fisher, “failed to meet the threshold of being in the top 10 percent of her graduating high school class — which would have automatically guaranteed admission to UT,” said Edward Wyckoff Williams at The Root. He went on to argue that “four decades after legalized discrimination was still codified in law, racial disparities persist at nearly every level of American society. From criminal justice to education, employment to housing, minorities in general and African Americans in particular continue to face an uphill battle toward social and economic equity.”
Affirmative Action for Whites
Williams also mentioned a new book, What’s the Matter With White People? in which the author, Joan Walsh, reminds readers that “white Americans enjoyed the benefits of the Great Society social welfare programs, in particular the postwar GI Bill, expansion of public universities, FHA mortgage-lending guarantees and union jobs … amounting to affirmative action government policies for poor and low-income whites — and often, almost explicitly, excluded African Americans and other people of color.”
At The Huffington Post, Steve Nelson accused Fisher of having her cake and wanting to eat it too and he accused the court of appearing “ready to hand her a fork.” Said Nelson: “The young white woman, a recent graduate of Louisiana State University, filed the lawsuit now being considered because, she claims, she was unfairly denied admission to the University of Texas. One might argue whether the distinction between these two institutions is so great that Fisher had standing to bring the case at all. She claims that this allegedly diminished pedigree has done her grievous harm. Whatever. Lots of kids don’t get into the colleges they most desire. Did Fisher, or those who advised her to sue, choose to complain that some other white student of ‘lesser qualification’ won the spot she so dearly coveted? No, it was only the allegedly ‘inferior’ black applicants whom she apparently resents.”
Court’s High Bar Cleared
Noting that “the Supreme Court has [previously] insisted that any affirmative action plan must meet the test of ‘strict scrutiny’ — that is, that the plan must be ‘narrowly tailored’ to serve a ‘compelling interest,'”Greenhouse said “the justices obviously know that the court has concluded that affirmative action in higher education admissions can clear that high bar — as it did nine years ago in Grutter v. Bollinger, the University of Michigan Law School decision.” So, she concluded, “There was a context in which the Regents of the University of Texas, following upon the Michigan decision, chose to act, a history they sought to acknowledge, and a better future they hoped to achieve for their diverse state by supplementing the unsatisfactory and mechanical ‘top 10 percent admissions plan with one that considers each applicant as an individual — with race as ‘only one modest factor among many others.'”
‘Temporary Measure’ to Permanent Entitlement
At Forbes, Bill Frezza wondered how “a set of ‘temporary measures to level the playing field’ become a permanent entitlement advantaging even minorities from wealthy backgrounds over white kids who grew up in poverty?” Frezza advised readers to take the approach that blond-haired, blue-eyed U.S. Senate candidate Elizabeth Warren did when she identified herself as a Native American on a Harvard Law School job application. Said Frezza: “Suppose enough of us chose to adopt the Warren standard? After all, every human being has ancestors that came from Africa, however remote. Who’s to say we don’t identify with them?And therein lies the fastest way to put an end to affirmative action without relying on the courts or the ballot box.”
Clever, isn’t he?
Downside for People of Color
Frezza and Fisher are obviously not alone in their disdain for Affirmative Action. Some however, are uncomfortable about it for entirely different reasons. At CNN, for example, LZ Granderson said, “If I had a nickel each time a white guy e-mails or tweets that I have my job because I’m black, I wouldn’t need the job, because I’d be rich. This is at the heart of a little talked about secret regarding affirmative action: A lot of black professionals don’t like it either. Not because they think the playing field is necessarily leveled, but rather their skills and talents are constantly being slighted by whites who think their jobs were given to them solely because of their race.”
Big Business Backs It
Big business, meanwhile, is on the aside of Affirmative Action, according to Bloomberg Businessweek. “Some of the biggest corporations in America say that having a diverse payroll helps boost sales, and they want the Supreme Court to keep that in mind as it considers this term’s affirmative-action case,” the article said.
What do you think?
Should Affirmative Action become another entry in the history books or is it still necessary for leveling the playing field?
Author and law professor Stephen L. Carter (photo by Elena Seibert).
Stephen L. Carter has the Christian Contrarian-Renaissance Man-Black Public Intellectual thing down pat. A Yale law professor, a best-selling author of both nonfiction and suspense-filled novels, a frequent contributor to the nation’s most-esteemed op-ed pages, including everything from The New York Times to Christianity Today; Carter makes it look easy. He also was a classmate of Supreme Court nominee Sonia Sotomayor, which is why we wanted to get his opinion about last week’s judicial hearings and the current state of affairs on the political scene.
Back in 1991, Carter’s book Reflections of an Affirmative Action Baby recast the national discussion on diversity and racial preferences by defending affirmative action’s effectiveness in opening doors for qualified minorities like himself while simultaneously taking it to task for casting doubt over black professionals’ ability to compete with the “best of the best.” His arguments left many critics wondering whether he was a liberal, a conservative, a neoconservative, or perhaps just an “honest liberal.” He defies easy labels.
Carter, a devout Christian, carried this same tough but evenhanded inquiry to the subject of religion in America. His books The Culture of Disbelief (1993) and God’s Name in Vain (2000) helped sharpen the debate about the intersection of faith and politics with ideas and arguments that were at once intellectually forceful and spiritually attuned.
Carter is hard to categorize, not because he enjoys keeping folks guessing but because for him serious debate does not easily translate into the kind of partisan sound bites that pervade talk radio and cable television. In an essay in The Virginia Quarterly Review, Michael Nelson uses Carter’s insights from his book Civility to shed light on the author’s skepticism about today’s brand of politics:
Carter regards politics as having betrayed us, in utterly bipartisan ways. Democrats promise entitlements and Republicans promise tax cuts, “but both parties are really doing the same thing: appealing to our selfish side.” Conservatives exalt property, liberals exalt rights, but “both teach us to worship ourselves.”
Recently, Carter has spent more time wearing his fiction hat. His first novel, 2002’s The Emperor of Ocean Park, shot up the best-seller list and quickly established him as an entertaining cross between John Grisham and Ralph Ellison. His latest work, Jericho’s Fall, finds Carter boldly tackling the “spy thriller” genre. As he began his Jericho’s Fall book tour last week, UrbanFaith talked to him about Sonia Sotomayor, diversity in America, and the question of empathy from the judicial bench.
URBANFAITH: You were friends and classmates with Sonia Sotomayor at Yale Law School back in the late ’70s. Did you suspect then that she could one day be a nominee for the U.S. Supreme Court?
STEPHEN CARTER: When we were law students, Sonia left an immediate impression because she hit the ground running. At a time when many others were quivering in the back of the classroom, she was doing the work, raising her hand, arguing the issues. I remember that her ambition at the time was to be a trial lawyer; by all accounts, she was a very successful one.
Her great strengths were two. First, the determination to get the answers right. By this I mean that she was less interested in persuading others that they were wrong than in weighing their arguments against hers to work out what the answer was. In other words, she always believed there was a best answer.
Second, she possessed then — and possesses now — an enormous human warmth, an ability to draw others to her. Sometimes she and I do not run into each other for years at a time, but, whenever we do, she hugs me and asks at once about my wife Enola, another law school classmate, and my children. I believe that President Obama made a wonderful choice.
How did it make you feel to see a Latina nominated for the highest judicial office in our nation?
I am perfectly happy to see more diversity on the bench. But, in this case, I am particularly happy to see Sonia Sotomayor on the bench. She is, to my way of thinking, a judge’s judge. I teach a couple of her opinions in my courses at Yale Law School. This is not because she is a friend — I have other friends on the bench whose opinions I would never inflict on my students — but because she writes extremely well, always tries to be fair in laying out the arguments, and has a particular skill in clarifying complex issues of federal regulatory law.
Almost immediately after Judge Sotomayor’s nomination was announced, conservative pundits started playing snippets of her old speeches. The most famous clip was from a speech where she suggested that a wise Latina judge would make a better decision than a white male. Those words were of particular concern to the senators who grilled her during last week’s hearings. What are your thoughts about her controversial comment?
The attention paid to Judge Sotomayor’s “wise Latina” quote captures everything that is wrong with the confirmation process. We spend little time studying the nominee’s opinions — hard to make talk radio fodder of that! — and, instead, search for snippets from speeches and articles that we can use as cudgels. This is true whether it is a Democratic or a Republican president doing the nominating. It is both silly and sad that we cannot talk about law, or about a judge’s work, but must instead search for these bits and pieces and make them the story. Alas, that is how America works these days.
President Obama said one of the things he was looking for in a Supreme Court justice was a sense of empathy, of being able to understand the experiences of the less fortunate. As a law expert and an African American, do you agree?
I respectfully disagree with President Obama that “empathy” is an important characteristic in a judge. Had the President said what I think he probably meant — “patience” or “a willingness to listen and learn” — I would have agreed. Judge Sotomayor has both in spades. But “empathy” is an empty standard. For example, a judge who always rules in favor of investment banks might have empathy for Wall Streeters; and, during the civil rights era, there were plenty of Southern apologists who described the working-class whites of the South as the truly oppressed in America.
What are your thoughts about the ruling by Judge Sotomayor regarding the New Haven firefighter case [Ricci v. DeStefano] that was recently overturned by the U.S. Supreme Court? Did you agree or disagree with Judge Sotomayor’s initial ruling?
I have no particular view on Ricci, other than to say that it was a sufficiently tough case and that both sides were well within the mainstream in their opinions. The Supreme Court’s 5-4 split is good evidence of this.
When you hear the phrase “post-racial” in regards to the state of race relations today, what does that mean to you? And how do you think the conversation about race and diversity needs to change in light of Barack Obama becoming president?
I think perhaps it is too early to tell. Let me give you an example of what I mean. In my new novel, Jericho’s Fall, the protagonist, Rebecca DeForde is never given a physical description. There are a few clues as to her race scattered throughout, but I never specify what it may be, and I have refused at all times to say. Yet some of the early reviews solemnly informed readers that Rebecca is white! I would like to believe that in the age of Obama, such things do not matter. Evidently, to many people, they do.
Let me slightly change the subject again. I know that education reform is a special area of interest to you. Are you hopeful that the current administration is moving in a direction that will be beneficial to students and families of all socioeconomic levels?
I am strongly in favor of school vouchers, and I am not afraid to call them that. I believe that the government has an obligation to subsidize poor families to help them gain some of the advantages that better-off families can buy. Studies on whether test scores advance or not are beside the point. There is a demand for vouchers from poor families. It is the well-to-do who oppose them.
I am not clear on the Obama administration’s precise position on school vouchers. The President and the Secretary of Education have said several times that they want to fund whatever works. But this standard, alas, can open the door to endless debate. I would respectfully urge upon the administration that it consider instead a standard something like the following: “We are committed to doing all that we can to provide to poor families the same range of choices available to wealthier families.”
Congratulations on the release of Jericho’s Fall. Over the past decade, you’ve been more prolific as a novelist than as a writer of nonfiction. Is there a reason for that? Have you found fiction to be a more effective way of communicating the ideas that are currently most important to you?
I enjoy writing both fiction and nonfiction. They call upon different parts of my brain and, I suppose, my personality. There are moments when one form of writing is easier than the other. This novel came very easily. The three earlier ones were labors of love, but also of agony.
Writing fiction is fun. I write it to entertain, not to communicate big ideas. But if the readers find ideas in the fiction, I have no complaint.
For more information about Carter’s writings, visit his website at StephenCarterBooks.com.