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.