Guest Bloggers

Racial Justice After Fisher and Shelby

In the wake of last week’s Supreme Court rulings in the Fisher affirmative action case and the Shelby County Voting Rights Act case, the post-mortems are in.

Race-based affirmative action in higher education is on its deathbed. Anti-discrimination protections for many voters are imperiled.

For the Court’s majority, two of the proudest achievements of the long Civil Rights Movement have become burdensome and outmoded, like a payphone on a troubled street corner. Even in liberal policy circles, the shibboleth of “class over race” (as if they were mutually exclusive) seems quickly becoming the new common sense.

At their birth, the 1965 Voting Rights Act and the adoption of race-based affirmative action at colleges and universities challenged foundational and broadly held assumptions of white supremacy and offered alternative visions of freedom and human possibility.

Restrictions on voting—dating back to the nation’s founding–were rooted in the assumption that fitness for democracy could not be made universal; all people did not have an inherent capacity to govern themselves. The Voting Rights Act of 1965, at its most transformative, imagined democracy as much more inherent to the human condition than the Founding Fathers ever did.

Similarly, discrimination in higher education—on the basis of race, class, and gender—has been predicated on the claim that intellectual capacity is not uniformly distributed. At their best, social movements to challenge educational segregation and exclusion operated from much more expansive visions of human intellectual possibility.

Those ideas–the assumption that human capacities for freedom and intelligence are not universal–flourish in our country today. They have justified the effort to disenfranchise nearly six million voters because of past felony convictions. They animate the belief that harsh voter identification laws and policies that criminalize common voter registration practices must be adopted in the name of “defending democracy.”

And they animate the outrageous (and repeatedly debunked) contention that large numbers of Black and Brown students enrolled in selective universities are “mismatched” because they lack the intellectual preparation or capacity of their white peers.

Yet our ability to openly contest and challenge these ideas—and the assumptions about human hierarchy and fatality that naturalize them—has largely disappeared.

As the political ground to defend affirmative action has narrowed, legal and political efforts to justify the policies have deteriorated to tepid defenses of diversity (often defined in practice as providing diverse experiences to white students) or apolitical claims for demographic parity and representation.

Defenses of affirmative action rarely challenge the profoundly hierarchical and dehumanizing beliefs that shape much of higher education in the U.S. today; they rarely offer alternative visions based on a different set of logics.

Similarly, voting rights advocates are largely forbidden—legally and politically–from straying beyond narrow claims for proportionality and demographic representation.

The Court’s decisions in both the Fisher and Shelby cases mandate that other bodies—the U.S. Court of Appeals and Congress respectively—must now deliberate the future of affirmative action and voting rights.

The challenge before us is not whether race-based affirmative action and voting rights protections are necessary or morally defensible. They are.

The challenge now is to re-politicize these struggles—to attach them to a critique and political vision that raises more fundamental questions about power, dehumanization, and human possibility.

And because it is the race concept that so often justifies a diminished sense of humanity, it will be through an unapologetic and expansive commitment to anti-racism that we will be able to imagine and popularize more robust and universal frameworks for democracy, education, and human possibility.


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By Daniel Hosang

Dan is an Associate Professor of Political Science and Ethnic Studies at the University of Oregon, and a long time community activist. He's also the author of Racial Propositions: Ballot Initiatives and the Making of Post-War California, and an editor of Racial Formation in the Twenty-first Century, a collection of essays described by race scholar Evelyn Nakano-Glenn as
"...a must-read for anyone striving to make sense of tensions and contradictions in racial politics in the United States and transnationally..."

2 replies on “Racial Justice After Fisher and Shelby”

Prof…I have a question regarding these decisions and racial gerrymandering.

I understand that the now defunct pre-clearence formula basically affects selected districts within the former confederacy, with some exceptions.

But I also gather that Southern Dem Af-Am reps are in collusion with Republicans. The former want safe-seats and the latter want to pack as many blacks as possible into one district. Its a common argument, but one commentator over at Lawyers Guns and Money summed it up nicely:

“Fact: a big reason why we’re losing the House is because of the geographic over-concentration of democratic voters.

Assertion: mandated majority-minority districts make this worse. They are literally a legal requirement to pack democratic voters into as few districts as possible. They don’t add to the voting power of minority votes – they diminish it. Hooray, you now have three minority-majority districts! That gives you a 14-3 minority in Alabama, mission accomplished?

The Supreme Court is doing us a favor by getting rid of this.”

My question revolves around the last line.

1. Did SCOTUS just make racial gerrymandering unconstitutional?

2. If so, is this is a good thing for Progressives?

This is an important question, that raises a few points for me:

1. Its important to remember that what the Shelby decision overturned was the formula (in Section 4(b) of the Voting Rights Act) that determined which districts were subject to preclearance requirements of the Act and thus would be subject to automatic review if those districts made changes to voting requirements. This applies to a broad range of potential barriers to voting, not simply to electoral district boundaries.

2. The Court has already issued two rulings against explicit racial gerrymandering (Miller v Johnson and Bush v Vera) and such gerrymandering was not the subject of the Shelby County case (so to answer the question, no this is not what the Supreme Court overturned).

In addition, the politically-crafted gerrymandering that has occurred in the South recently (as well as other parts of the country) was not a result of the VRA nor the preclearance requirement or formula–it has been done for partisan gain (and by both major parties).

3. That said, there is a debate among voting rights activists about the relationship between the drawing of electoral districts and the political power of groups historically subordinated on the basis of race. This debate is often described in terms of whether to concentrate or disburse voters of color. There is considerable nuance within this debate (i.e. taking local context and history seriously and considering multiple obstacles to participating in elections), as well as many who advocate for different voting systems altogether that more systematically incorporate a broad range of interests.

With that said, the point I was hoping to make is that debates over election policy and law need to beyond simple questions of numerical representation or partisan advantage to challenge more fundamental questions about who is and is not fit for democracy.

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