John Roberts, Antonin Scalia, Abigail Fisher, and the Power of Normal

This past week, the Supreme Court heard arguments in Fisher v. University of Texas. Abigail Fisher argues that the university’s practice of using race as a tiebreaker between equally qualified applicants denied her admission to the school. The standard in these things requires proof, often to a remarkable degree. To get satisfaction in a racial discrimination case rarely requires less than a miracle, as the Court has routinely held that one must show discriminatory intent, not merely effect. A barely competent white supremacist can easily dodge that bullet, as long as the white hood stays at home during the trial.

Fisher didn’t have to prove anything at all to make it to the high court twice over. One might think Fisher studied hard and lost her spot to someone skilled at the in the receipt of brain trauma with incidental carrying of a football, surely the more critical factor in the making of a scholar. One might think she got very lucky and benefits from a sea change in the Court’s thinking about these issues. But it turns out that Fisher simply did not qualify:

Although one African-American and four Latino applicants with lower combined academic and personal achievement scores than Ms. Fisher’s were provisionally admitted, so were 42 white applicants whose scores were identical to or lower than hers. Similarly, 168 black and Latino students with academic and personal achievement profiles that were as good as, or better than, Ms. Fisher’s were also denied, according to the university.

Even if Ms. Fisher had received the highest possible personal achievement score, she wouldn’t have gotten an acceptance letter. As the conservative Fifth Circuit Court of Appeals observed in a careful opinion, if Ms. Fisher had been a minority applicant, she still would have been rejected.

Abigail Fisher didn’t have the grades and get kicked aside by the stereotypical unqualified minority student. She couldn’t cut it, period. That holds true unless, of course, one considers her white skin a sufficient credential in itself.

These cases have a tedious ritual to them. The Court long ago rejected the idea that minority applicants, having an entire culture built around denying them advance and exploiting them ceaselessly, deserve treatment that reflects the disabilities white America has gleefully inflicted upon them. Instead one must argue that diversity makes for a better educational environment. Maybe so, but better for whom and how? All-white environments might reduce the prevalence of white supremacy, but that in itself would suffice to mobilize at least a political party against their reduction. Had the issue come to us ex nihilo, white America would possibly manage a historical first in not letting it entirely reorient American politics. More likely it would prompt one of those epoch-defining realignments. If diverse environments improve the success of minority students, that only further damns them.

Just ask the justices. John Roberts said it himself:

What unique perspective does a black student bring to a class in physics?

Strictly read, one can only say that a black student brings no unique perspective to physics. You needn’t be black or white to understand the material and, barring some kind of nineteenth century theory about race and intelligence suddenly turning true, one shouldn’t expect anything else. Nor, of course, does having a black student sitting next to a white one make the white any better at physics. Endowed with the same range of abilities and living in the same universe, why would race matter? And if race doesn’t matter, then why should we have a special effort to ensure diversity?

We do all live in the same universe. We all share the same range of ability. One can’t argue with the facts, though hardly a decade passes without a high-profile attempt to revive racial pseudoscience. But turn Roberts’ question around. He assumes the norm of an all-white physics class, where the inclusion of black students requires justification. Nothing about it strikes him as remarkable. And why should it? Whites-only environments remain the norm for probably most of white America. Ask us to go into a business with a whites only sign on the door, most of us would refuse. Tell us that our neighborhood forbade black residents and we respond with horror. We don’t put up those signs or sign those covenants anymore, which proves our virtue.

Or we could look honestly at our lives. How many of us actually live in diverse neighborhoods? How many of us patronized a minority-owned business today? How many of us have diverse social circles? The few of you who have a hand up at this point have done me one better. My entire section of the state constitutes a large de facto white only establishment. The arrival of a black family meant that sheriff’s deputies attended the high school for weeks. Small town America treasures its horrors, but I wager that unless one goes out of one’s way most white Americans live lives governed by Jim Crow. We don’t think about how we don’t mix; it simply doesn’t happen. We have arranged these things so that they operate invisibly. For us.

Just as we invented whiteness to deprive others, we constructed our normal to do the same. We made the all-white everything the default and thus defined our way into seeing inclusion as a burden we must suffer. So construed it becomes fundamentally disruptive, a kind of pollution we must purge from our lives. Whether we say the words or not, we have the white power inertia built into the system. It wouldn’t do for the races to amalgamate.

Antonin Scalia eschewed even the customary fig leaves:

“There are—there are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a … slower track school where they do well,” he said. “I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer.”

In other words, the University of Texas has too damned many blacks blacking it up. They can’t deserve to attend or they would anyway, he declares like a dim-witted alien who just crash landed and doesn’t know how to work a history book. If we can get them out, then the court has done the university a public service. It’ll help black Americans too. Scalia, the kind patriarch, knows that they need special discipline. They don’t have the potential of other races and require different handling.

Alexander Stephens

Alexander Stephens

This should all sound familiar. If Scalia didn’t quite go full-on nineteenth century, he came close enough. So do the legions of others who would agree, even explicitly for the less sophisticated, that efforts to redress centuries of racial plunder seek only

to make things equal which the Creator had made unequal.

Alexander Stephens laid out an American as well as a Confederate creed, ancient in its faith and orthodox in its practice:

With us, all of the white race, however high or low, rich or poor, are equal in the eye of the law. Not so with the negro. Subordination is his place. He, by nature, or by the curse against Canaan, is fitted for that condition which he occupies in our system. The architect, in the construction of buildings, lays the foundation with the proper material-the granite; then comes the brick or the marble. The substratum of our society is made of the material fitted by nature for it, and by experience we know that it is best, not only for the superior, but for the inferior race, that it should be so. It is, indeed, in conformity with the ordinance of the Creator. It is not for us to inquire into the wisdom of his ordinances, or to question them. For his own purposes, he has made one race to differ from another, as he has made “one star to differ from another star in glory.”

We don’t appeal to divine design quite the same way now, but the most ancient and popular theology entails no more than discovering the will of gods in the sum of all the things we would have done anyway. An architect, or rather many, did work in building our society, choosing materials with malice aforethought. We need not see the architect at work to recognize the edifice. We do it every day though carefully in terms of blind, impersonal operation rather than our racial animus, however unacknowledged. Doing that frees us from any pangs of conscience and leaves us assured of our own virtue, that most critical of concerns. How else could we enjoy the profits of stolen lives?

Abigail Fisher suffered a great wrong. Unqualified for admission into the University of Texas, she deserved it all the same. Can’t we see the whiteness of her skin? She earned that. She built it herself and the university stole it from her. It took from her the most precious thing she could have and treated her not like a person, but like a black person. They belong outside of universities just as whites belong within. If the Supreme Court looks poised to recognize that, as it has recognized black Americans don’t belong in polling places, then we can’t much wonder at the news. Its majority would only ratify decisions we made long ago and uphold every day. What could possibly be more normal? We put away the whites only signs, if only after great struggle and occasioning a tremendous political realignment, but we have carefully kept the whites only reality. Now, barely more than a generation removed from that, we increasingly choose to declare our whites only reality right and good in itself once more.

Should Fisher get her ruling, some will protest. Some will despair. But others will cheer it as a great advance toward racial justice and mean every word of it. They always do.


The Michigan Juneteenth Controversy of 2015

One could convince most white Americans, without too much kicking and screaming, to admit that slavery constitutes a national embarrassment and we should all celebrate its end. But doing that often requires that we close the book and pretend that equality came completely and permanently in 1865. This contradicts the rest of the popular historical memory, which also assigns that date to 1776 and 1965 but these things rarely demand consistency. The perfection matters more than the date and infinitely more than the facts. We unite to celebrate the wonder of our triumph over division and injustice, not recognize its persistence and use past victories as inspiration for future efforts. If we really believed otherwise, we’d more eagerly celebrate Juneteenth. All the same, one imagines that something so innocuous as a resolution on the occasion should sail through any state legislature.

Michigan, my state, aims to disappoint.

The Juneteenth measure, which Democratic Sen. Bert Johnson of Highland Park had hoped would be adopted on June 19 — the holiday — was instead referred to a Senate committee Tuesday after behind-the-scenes wrangling.


Senate Judiciary Committee Chairman Rick Jones, who is white, said unspecified GOP leaders asked him to change the “strange” and “quite shocking” resolution. The Grand Ledge Republican said parts of the measure are “sort of a political attack” instead of being celebratory in nature.

“When you do a resolution, this comes from all the senators, not just one. If he wants to make a tribute and have it just be from him, fine. But if it’s a resolution, it’s coming from all the senators,” Jones said. “It’s important that it be done appropriately.”

You can read the resolution here. The controversy arises over this passage:

After the emancipation from 246 years of slavery, Africans in American continue to experience the vestiges of slavery from challenges to voting rights, inadequate public education systems, lack of access to capital lending institutions, and other social and economic injustices; now, therefore, be it

Rick Jones informs us that the Republican leadership took this as a political attack. As the Republicans have a majority in the state Senate, their opinion generally prevails. Challenges to voting rights, poor schools, limited access to capital, and various other injustices disproportionately impact black Americans as much in Michigan as everywhere else in the nation. But to suggest that these flow from the original and greatest of injustices against them reaches out of bounds. It constitutes an attack. Such a resolution could not speak for the whole state Senate.

While slavery ended, de jure, in 1865 the injustices built into it did not all expire that year. For most of the subsequent century, save a promising decade or so, white Americans united to preserve most of them. We still do largely united around many of them, provided we can come up with a sufficiently colorblind pretense.

Confederate Battle FlagBut state Senators don’t always get the best history education. We can attribute the GOP leadership’s issue with the resolution to ignorance. If they genuinely don’t connect present injustices to past injustices from not knowing, fair enough. That would leave them with a distinct segment of the national population who do rather less well than the rest of us. Black Americans constitute far more of our poor, our unemployed, and our prison population than their numbers would account for. Looking at such a consistent pattern, one has only two explanations. Either America treats its black citizens disproportionately harshly and uncharitably or they have something conspicuously wrong with them. Otherwise, they would come out more or less the same as any other group of Americans.

Our white self-esteem suggests the latter option. Black Americans just gone wrong somehow. If they deserved equality or they would have it. We run a fair system here, dating all the way back to 1619. Nobody would enslave another unless they really had it coming. Our history, and an honest examination of the present, argue otherwise. White Americans have built and in many cases still build systems designed to use and exploit black Americans. If the GOP senators take that as a political attack, they ought to wonder why.

By denying that present injustices have their historical roots and implying them just rather than unjust, the Senate leadership have chosen to fly the same flag Bree Newsome took down last weekend whether they care to employ the colors visibly or not. That they did so in Michigan, rather than South Carolina, should remind us that systems of white supremacy only operated most notoriously in the South. Few white Americans, of any age or section, have cared to do much to disrupt them. Fewer still have cared to do so for those systems that benefit them personally. In this vein a past, Democratic state government convinced the Supreme Court to permit school segregation 1974, twenty years after Brown. It turns out that segregation meets constitutional muster provided one can erect a flimsy disguise around it.

I did not vote for Rick Jones or any other member of the GOP leadership, but the Michigan Senate speaks for all Michigan just as its resolutions speak for the whole Senate. I can only speak for myself, but I view the obstruction of the Juneteenth resolution as “quite shocking” and “sort of a political attack.” I cannot, however, say I view it as strange either in its content or in how it implicates me and millions of other Michigan residents. It speaks to one of the nation’s oldest political faiths and consequently seems to me, if not for the same reasons as it does to the Republicans, as entirely normal. I don’t know that we must uphold traditions, but it seems likely that we will choose to. In doing so, we say things about ourselves. We could choose to say better things and to undertake the obligations that they would entail. Or we can choose to keep flying a different flag.