With a pair of cases announced days before their summer retirement, Gratz v. Bollinger and Grutter v. Bollinger, the US Supreme Court decided the constitutionality of affirmative action, at least for the next generation. The issue had been long awaited by conservatives, and dreaded by those of a more liberal persuasion who feared that the notoriously right-wing jurists would sound the death knell to the practice.
Affirmative action and higher educational admission survived, if just barely, because of one vote, that of Associate Justice Sandra Day O’Connor, who provided the fifth vote to uphold the admissions program of the University of Michigan Law School. Her five-four majority in Grutter was offset by the separate six-three vote garnered by the companion Gratz case, which struck down the university’s undergraduate affirmative action policies.
For liberals, the decision was hailed as, “a huge victory,” in the words of one of the litigators, Maureen Mahoney, a former Supreme Court law clerk. Conservatives saw it as a betrayal of sorts, especially as it came from the pens of several Republican appointees, like O’Connor and David Souter.
But what moved Justice O’Connor to merge with and create a bare majority was hardly the mirror of liberalism. As she explained, both in her oral remarks and in her written text, the arguments raised by the US military, top Pentagon officials, and military training academies made all the difference. What made the case, in other words, were not the individual beneficiaries of affirmative action, meaning Blacks, but the institutional beneficiaries; the Army, the Navy, the Coast Guard, the Marines. These are hardly liberal institutions.
Perhaps just as important were the amicus curiae briefs filed on behalf of American businesses. For them all, Gratz and Grutter represented good business and good military sense. For it is in the interests of both corporate America and the imperial military to have Black faces projecting their messages to a predominantly multi-colored world. Look at the recent Iraq adventure, and the faces of Black soldiers and generals formed an important element in selling the PR side of that debacle. It’s like putting a rap song on a car commercial. Blackness is but another commodity to sell the system.
It has been almost 50 years since the historic Brown v. Board of Education case that outlawed school desegregation in US schools. Yet, a generation after Brown, this commentator went to schools that were as Black as anything in Dixie. Such schools still stand generations later in Black, Puerto Rican, or Mexican ghettos and barrios across the land where millions of American kids get just as miseducated as their parents before them. They’re just desegregated, but under the rubric of class, which hides the same racist character of the system. Indeed, Brown became law in part because a US anti-communist campaign would have been hard in the Third World if US courts upheld racial discrimination. Similarly, Grutter serves other interests. Blacks are merely incidental. From death row, this is Mumia Abu-Jamal.
These commentaries are produced by Noel Hanrahan for Prison Radio.