Fifty-three years after the Brown Decision declared segregation in schools unconstitutional and twenty-nine years after a more conservative court limited in the Bakke decision the scope of affirmative action policies in education to questions of diversity, the Supreme Court this week gave the supporters of de facto segregation and institutional racism a major victory.
What they have done, and everyone should be clear about this, is to remove largely the diversity category which, with its limitations, has been the basis of institutional affirmative action policies in education since the Bakke decision. They have also made that point very clear with a rebuke to those who have used that category over thelast three decades.
Once more the "gang of four ultrarightists" led now by Chief Justice Roberts were joined by regular conservative Republican Anthony Kennedy in rendering this judgment, which should be seen for what it is, a
right-wing political order by a court overturning local school district integration plans carried forward by school boards and administrators
That Kennedy separated himself somewhat from the gang of four will probably be emphasized by maintream media and various legal pundits, but it really doesn't deserve to be. He voted with them (as he has begun to do consistently) in a decision which in effect will tell school officials through the country that they have much more to worry about by developing policies to foster integration then they do byproviding de facto support to de facto segregation and discrimination.
John Paul Stevens, a Republican appointed by Gerald Ford in 1975 and today both the longest serving member of the court and arguably its most progressive member, made the point that no one on the Court that he joined in 1975 would have supported this decision. Since that Court included the Nixon appointees who moved it to the right, it serves as an eloquent commentary on what Ronald Reagan and the two Bush presidents, particularly GW, have done to the Supreme Court andthe Federal Judiciary.
Just as Abolitionists rejected the Dred Scott decision and progressives, socialists and communists rejected reactionary Supreme Court decisions ranging from Hammer v. Dagenhart (1918) declaring legislation outlawing child labor unconstitutional to the Dennis Case (1951) upholding Smith Act legislation used to imprison the national leadership of the CPUSA for forming a political party to teach and/or advocate the violent overthrow of the government (itself not only a very crude assault on the Bill of Rights but a huge distortion of what the CPUSA really stood for and actually did) supporters of civil rights and an integrated society must condemn this decision and in effect call upon Congress now and the next national administrationto enact comprehensive new Civil Rights legislation
We should remember that no major Civil Rights laws have been passed in this country since 1968 and that new legislation is needed that will put affirmative action directly into the law, not into presidential directives and judicial decision, as it was in the 1960sand 1970s, and stop this right-wing dominated Court.
Today the Roberts Court sought to use an interpretation of the Brown decision that threatens to bring the nation into a political twilight zone where de facto and de jure segregation will be become indistinguishable and institutional racism will be massively expanded. This was the logic of Roberts majority opinion ,which outraged John Paul Stevens and would make Earl Warren, Hugo Black, William O. Douglas, and their colleagues on the Court in 1954 turn over in their graves, not to mention Thurgood Marshall, who served as chief counsel for the NAACP in arguing the Brown Case and whom Lyndon Johnson, who signed the original executive orders establishing affirmative action policies, later appointed to the Supreme Court.
--Norman Markowitz is a contributing editor of Political Affairs.
