Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.


Speaking Openly and Candidly on the Subject of Race


Timothy Sherratt

05-02-2014


By Timothy Sherratt

May 2, 2014 

For Justice Sonia Sotomayor, the goal of affirmative action is cultural belonging. Writing in dissent in Schuette v BAMN, she declared, “Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’ ” 

Where Brown v Board pulled a vital thread to begin the unraveling of racism, affirmative action was adopted in an attempt to speed up that unraveling, to make up in a few decades the losses incurred over two-and-a-half centuries. Chief Justice Roberts argues that progress can best be achieved by putting those lost centuries behind us. Hence his formula, “The way to stop discriminating by race is to stop discriminating by race.”

Justice Sotomayor evaluates progress or the lack of it by appealing to a different measure. “Race matters to a young man's view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up.” Countering Roberts, she wrote, “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

When the High Court last week upheld a Michigan voter initiative that banned the use of race-based formulas for admission to the state’s public universities, Roberts and Sotomayor tangled in concurring and dissenting opinions respectively. It was left to Justice Kennedy’s plurality opinion to hold that voters may tell state officials not to use race-conscious admissions policies without violating the Equal Protection clause of the 14th Amendment. But the questions persist. 

Is optimum effectiveness on racial inequities achieved by putting race behind us? That question sounds straightforward. It isn’t. It presumes that we all agree that the goal of post-Brown policy is to get more disadvantaged minorities into schools, professions, and positions of social merit. But that presumption would leave Justice Sotomayor’s emphasis on cultural belonging unsecured.

The legal conversation now focuses on the substantive costs and benefits of affirmative action. Roberts thinks there are few proven benefits but a lot of costs—well summed up by a student in my constitutional law class this week: “Affirmative action would be demeaning to me. It would say my achievements are suspect.”

A decade ago, the Court ruled affirmative action by quota unconstitutional. Taking race into account had to be part of an individualized consideration of applicants and narrowly tailored to the end of achieving diversity. Then a year ago, the Court weakened the mechanisms of the Voting Rights Act and effectively freed states from being subject to prior approval of changes to election laws. Now voters can negate the race-conscious plans of state officials. The symbolic scope of these changes may exceed their legal reach. But absent affirmative action and its symbolic assurance to spokespersons for the disadvantaged, what will best secure cultural belonging?

The subject has certainly become hard to talk about. Justice Sotomayor calls for Americans “to speak openly and candidly on the subject of race.” But in a real sense, these words are more a code for holding certain views on the subject and for implying that opponents are out of touch. As Dahlia Lithwick pointed out, with reference to Sotomayor’s criticism of Roberts and Roberts’s rebuttal, nobody likes to be accused of being out of touch. Even on the Supreme Court, the conversation is fraught with tension.

Perhaps the ambiguity surrounding affirmative action’s costs and benefits points to the limits of political and legal remedies. A deeper answer, but hardly a quick fix, lies in learning the hard way, how to be and how to live in, a pluralistic society. At first blush, recommending pluralism might appear to perpetuate rather than transcend race-consciousness. But difference affirmed is the necessary basis for honesty about our common condition and the history we share. Difference affirmed is a first step to cultural belonging. The church can and should have a strong and transformative role in this respect. Where better to practice the Faith that redeems our fallen condition, asserts our membership of one another, and supplies ways to belong, than in our churches?

-  Timothy Sherratt is Professor of Political Science at Gordon College in Wenham, Massachusetts and a Sabbatical Fellow with the Center for Public Justice.



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