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October 10, 2012

Rainbow Urges Court To Preserve Race Discrimination Remedy

For Immediate Release:

Contact Rob Woods

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Statement of Rev. Jesse L. Jackson, Sr. and Janice L. Mathis, Esq.


ATLANTA (October 10, 2012) –The Supreme Court should preserve the prerogative of the nation’s most elite institutions to consider race in admissions decisions. We don’t balk at athletic preferences, or preferences for musically inclined students. We accept gender balancing in the nation’s most elite colleges and universities as a matter of course. No one objects to taking the socio-economic class of an applicant into account, or bats an eye when a student from a poor region of the country is preferred over an applicant from a wealthy region. Even in schools where race-based remedies for past discrimination are outlawed, the fact that women now outnumber men on campus is an acceptable basis for admitting men who may not have grades or standardized test scores as high as their female classmates.


We reserve a special place in the law for race…and with good reason. Our history is littered with instances of government discrimination against blacks and other minorities because of their race. And we have conflated the issues that undergird racial exclusion to create an exotic species: reverse discrimination. In the words of Justice Ginsberg, “Our jurisprudence ranks race a ‘suspect’ category, “not because race is inevitably an impermissible classification, but because it is one which usually, to our national shame, has been drawn for the purpose of maintaining racial inequality.” She goes on to write that the “Constitution instructs all who act for the government that they may not deny any person … the equal protection of the laws.”


Reverse discrimination is a red herring because it does not take into account the real purpose of affirmative action. It is designed to be a relatively benign answer to current and past exclusion based on race. For half the nation’s history it was illegal for blacks to read and illegal for anyone to teach blacks to read.


Sandra Day O’Connor writes that the 14th Amendment, guaranteeing equal protection and due process, “protects individuals, and not groups.” That sentiment makes sense and sounds fine out of context. But if you take the history of race relations in America into count, it is idiotic. Blacks were not segregated as individuals. They were segregated because they were part of a despised group. They were not enslaved based on individual characteristics. They were segregated because on their faces they bore a badge of supposed inferiority. They were not denied jobs, the right to vote, the right to marry, or any of the other indignities that lasted well into the 20th century as individuals. Books like the Pulitzer Prize-winning “Slavery by Another Name” painstakingly document the disadvantage that blacks suffered in this nation because of the racial group to which they belong.


Now that the nation has matured to the point of accepting that remediation is in order, after less than fifty years of civil rights agitation and progress, it is assumed by the right-wing that remedies must be individualized and race may not be taken into account. From the death of Dr. King to Bakke (1978 reverse discrimination case) is a mere 10 years. We should not fool ourselves into thinking that the strict scrutiny of race-conscious programs designed to remedy past discrimination and promote present-day diversity are legal fossils. It was not until 1995, in a 5-4 decision in Adarand v. Pena, that the Supreme Court finally held that strict scrutiny was the appropriate standard for all governmental programs based on race, including those designed to help, not hinder, unrepresented minorities.


We will hear much in the coming months about Sandra Day O’Connor’s opinion in the Michigan cases and the swing-vote role of Kennedy. But we ought to listen more carefully to the soft plea of Ruth Ginsberg. She makes more sense than all the rest, but is the least-quoted and most ignored on this critical issue.


According to Justice Ginsberg, government decision makers may properly distinguish between “policies of exclusion and inclusion. Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its after effects have been extirpated. To say that two centuries of struggle for the most basic of civil rights have been mostly about freedom from racial categorization rather than freedom from racial oppression is to trivialize the lives and deaths of those who have suffered under racism. To pretend … that the issue presented in Bakke is the same as the issue in Brown v. Board of Education is to pretend that history never happened and that the present doesn’t exist.”


This wise, nuanced approach to our nation’s changing demographics should be embraced and adopted by the court to preserve race-based remedies for past and current discrimination. It takes into account our history and gives us the best chance of achieving a secure, competitive and prosperous future.