America has become a more unjust nation | Opinion
During a speech at Howard University in 1965, then-president Lyndon Johnson made the following statement: "You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, 'You are free to compete with all the others,' and still justly believe that you have been completely fair."
Yet the so-called conservatives on today’s Supreme Court, who are on some perverse mission to undo all the accomplishments of the civil rights movement and mock the sacrifices people made to achieve them, unjustly believe that the race Johnson described is now completely fair.
One of the lauded accomplishments of the post-Civil War’s 14th Amendment is the Equal Protection Clause, which proclaims that states will "not deny to any person within its jurisdiction the equal protection of the laws."
It didn’t take long, however, for the Supreme Court, in the case of Plessy v. Ferguson (1896), to decide that racial segregation based upon the doctrine of "separate but equal" did not violate this clause. The ramifications of this ruling were a racially biased court system, lynchings, the destruction of entire communities, unequal access to education and unchecked police brutality.
Under the 14th Amendment, race is considered to be a protected class, meaning that if laws and/or policies treat people differently based upon race, they have to pass the "compelling interest test" − the highest burden of legal scrutiny in Equal Protection cases. For decades, achieving diversity in higher education met the requirements of this test.
Now what both Plessy and today’s Supreme Court’s destruction of affirmative action demonstrate is that the use of race is perfectly acceptable when it promotes white privilege, but unacceptable when it doesn’t.
Having worked in the legal system for several years, one of the areas of hubris I frequently encountered was when judges presumed that their words created the reality, and this is no more evident than in the chimera that eliminating affirmative action will magically create a "color-blind" society.
The irony is that the Supreme Court’s outlawing of affirmative action comes at a time in America when the mere mention of race, racism and Black history in public education is anathema, many right-wing politicians are openly appealing to white supremacy, and initiatives to support diversity, equity and inclusion (DEI) are constantly under attack.
The ultimate hypocrisy, however, in the Supreme Court’s abolishment of affirmative action is that, just a few days earlier, it actually acknowledged the continuing existence of racism in America by ruling that some states had, in violation of the Voting Rights Act, intentionally redrawn congressional districts to dilute the voting power of persons of color.
While it is true that the voting rights decision was based upon an analysis of a statute, while the affirmative action ruling was based upon an analysis of a constitutional amendment, the reason the Voting Rights Act was passed in the first place was because the legal interpretation of the 15th Amendment had allowed racially-based restrictions (such as biased voter registration "tests" and other draconian measures) to impede the right to vote, just as affirmative action was created to undo the lingering legacy of inequality sired by the Supreme Court’s "separate but equal" interpretation of the 14th Amendment.
There is something fundamentally wrong when a handful of unaccountable people from privileged backgrounds, with questionable qualifications and dubious ethics, and dismissive of the rights of anyone who is not white, male, rich, heterosexual and proclaiming to be "Christian," can destroy the futures of millions.
If these so-called conservative justices truly believe in meritocracy, then they should immediately resign, especially since most of them attained their positions through perjured testimony (especially regarding their feigned "respect" for legal precedent), political patronage, fundamentally flawed background checks, and/or the corrupt machinations of Republican members of the United States Senate that sanctimoniously contended it was an affront to fairness to advance a Supreme Court nominee months before the 2016 presidential election, but subsequently had no compunction about advancing another such nominee just a week before the 2020 presidential election.
America has become a more unjust nation, and the damage may never be undone.
David R. Hoffman lives in South Bend, IN, and is a retired civil rights and constitutional law attorney.
This article originally appeared on Cincinnati Enquirer: America has become a more unjust nation | Opinion
