Repealing the Last Half of the 20th Century

The Supreme Court’s conservative majority wants to return us to a past that never existed

The University of Arkansas’s Senior Walk. | Credit: Fayetteville Flyer | Photo: Dustin Bartholomew, Flyer Staff

---

Not long ago, the U.S. Supreme Court held the belief that centuries of enslavement of Black Americans followed by decades of Jim Crow laws were fundamental wrongs in need of remedies.

Regardless of political persuasion, the Court’s justices held the opinion that segregated lunch counters and “separate but equal” laws were profoundly unconstitutional.

For generations, the Court considered a woman’s right to bodily autonomy as settled law. The result of the Court’s judicial consistency on these issues was the most significant expansion of civil liberties since Reconstruction.

But in an about-face, the current Court would have us believe the very remedies intended to address past wrongs are themselves the source of injustice. As of last month, the Court’s majority view is that discrimination is just another form of free speech.

Moreover, the Court’s current position is that financial obligations, no matter how burdensome, only warrant redress when they impact corporations or the well-heeled. Perhaps most strikingly, the conservative majority took the opinion that the sufficient remedy for four hundred years of Black inequity is a few decades of half-measures.

The reversal of so many long-held legal precedents is enough to make one’s head spin. So what changed to warrant such a dramatic change in more than fifty years of jurisprudence? The answer is disturbingly simple. Nothing. Nothing except the number of conservative justices on the U.S. Supreme Court.

In a panel discussion last week on MSNBC’s Morning Joe, New York Times editorial board member Mara Gay aptly distilled the view of many Black Americans vis à vis the upside-down logic the Court used to arrive at its ruling on affirmative action (emphasis mine):

[T]he irony here is that there is nothing colorblind or race-neutral about ignoring seven generations of white supremacy, racism, slavery, Jim Crow, redemption, that has disadvantaged Black Americans and many others and unfairly advantaged, in fact, generations of mostly white students who are finding themselves at some of the nation's best institutions because their legacy students and you know, the fact that these decades of lawsuits have focused on black students in particular as being unworthy of a remedy. Despite that history, where the advantage afforded to legacy students who are overwhelmingly white males, you know, that says everything we need to know about who is considered worthy in this country, about who's considered American, about our views on meritocracy. And we should really rethink I hope in the in the wake of this decision. What does it mean?

I, like many African Americans, am still struggling to process last month’s Supreme Court decision on affirmative action. Having come of age in the sixties and seventies, the Court’s ruling to kill affirmative action was profoundly bothersome, not because the policy was perfect, but due to the intellectual dishonesty used to destroy it.

The conservative majority’s contention that the 14th Amendment—which was enacted as a cure for anti-Black racism—was somehow rooted in a doctrine of “colorblindness” flies in the face of the historical evidence (emphasis mine):

Although the 14th Amendment is frequently invoked now, particularly by conservative judges and commentators, to attack affirmative action and efforts to desegregate schools under the guise of “colorblindness,” the Fourteenth Amendment was never a colorblind document. The amendment was enacted specifically for purposes of assisting newly freed Black people. Although the 13th Amendment ended slavery, it left uncertain the status of those who had been kept in bondage. The infamous Dred Scott case had held that Blacks had no rights that whites were bound to respect and denied them citizenship. The 14th Amendment was necessary to make clear that Black people, as well as anyone born in the country or naturalized, were American citizens.

It is essential to recognize that honesty, intellectual or otherwise, was never the goal of the Court's conservative-leaning justices. During his recent visit to Ukraine, former Vice-President Mike Pence revealed, perhaps by accident, the true motivation behind the abandonment of decades of precedent (emphasis mine):

“I’m grateful to see that the conservative majority, that we helped build on the Supreme Court, bring an end to most of affirmative action. Look, we want to live in a color-blind society. And I will tell you — There may have been a time, 50 years ago when we needed to affirmatively take steps to correct long-term racial bias in institutions of higher education. But, I can tell you, as the father of three college graduates, um, those days are long over…

Pence’s use of his white daughters’ collegiate experiences as evidence that racial bias no longer exists is as offensive as it is idiotic. That said, what he said next is eye-opening (emphasis mine):

…And I’m grateful today that the Supreme Court took us one step back to that America that will judge every man and woman on the content of their character and their own achievement, and leave race out of consideration for admission to institutions of higher learning.

Pence’s disingenuous evocation of Martin Luther King, Jr. notwithstanding, his “one step back” comment gives away the far-right’s true intent. As far as they’re concerned, the Court’s decisions aren’t so much about the law as they are part of a broader effort to take us back in time.

The former vice president and his ilk long to return us to a bygone America, a time when its non-white citizens knew their place and the LGBTQI+ community stayed in the proverbial closet. This Lost Cause 2.0 sentiment is the driving force behind the “Make America Great Again” ideal. The problem for those of us who are not white and/or straight is that for us, the Great America of Pence’s halcyon fantasy never existed.

When America wasn’t so great

Since the Supreme Court’s ruling, I’ve heard a few people downplay the impact of the affirmative action ruling. They say we’ll figure out workarounds to the Court’s decision. While I suspect most people who hold this view weren’t around to experience pre-affirmative action America, they may be right—just not for the reasons they think.

The fact is that this country’s vulnerable populations, African Americans in particular, have always managed to overcome America’s unique brand of challenges. I’ve written previously about the segregated schools I attended and how I was expected to learn using ragged, hand-me-down books gleaned from all-white schools. As unbelievable as it may seem, I didn’t attend school with white children until I was in junior high school—in 1970.

But as discriminatory as those days were for me and other Black Americans, they could’ve been worse. The University of Arkansas, a college I attended for a few years, is a case study in how demeaning higher education was for African Americans before affirmative action.

In 1948, Silas Hunt became the first African American to attend the University of Arkansas since Reconstruction. A veteran of the Second World War, Hunt broke the South’s so-called color barrier by enrolling in the University’s law school (emphasis mine):

On January 30, 1948, university officials announced that they would allow qualified black graduate students to be admitted to the university, which made Arkansas the first white Southern university since Reconstruction to admit black students. Black undergraduates, however, were still refused admission despite the fact that at least one such student had attended the university during Reconstruction. This was in accord with the 1938 U.S. Supreme Court decision Missouri ex. rel. Gaines v. Canada, which, while upholding the doctrine of “separate but equal,” required that states either provide legal education for African Americans at separate facilities or desegregate its law schools; desegregation of other institutions was not required. Arkansas officials reasoned that black state colleges provided an adequate education in other fields and that there were more than enough to serve the black population.

Hunt was the first of the “Six Pioneers,” the name given to the initial group of Black students who desegregated the University of Arkansas law school. Unfortunately, Hunt died of tuberculosis just one year after being admitted.

The first three African Americans graduated from the University of Arkansas in 1951. Although the University integrated its undergraduate colleges that same year, its segregation of housing and athletic programs continued well into the 1960s. As recently as 1976, my freshman year at the school, there still were no Black cheerleaders at the University of Arkansas. It is telling that this discriminatory practice came to an end when the football team’s Black athletes threatened to boycott an upcoming game.

Minnie Muldrow Johnson, my late aunt, attended the University of Arkansas in late 1950, making her one of its first African American students. The University’s segregation policy required that she, along with a handful of other Black female post-graduates, be housed on the top floor of a two-story house instead of a dormitory with their white classmates.

The upper floor was chosen so their presence on campus would not be visible from the street.

Johnson and her Black classmates were required to use separate bathrooms. They were prohibited from eating in the University’s cafeteria, so they used hot plates to prepare their meals. Each weekend, her husband, my Uncle Roger, brought groceries for the following week. Since the I-40 interstate had yet to reach Fayetteville, Arkansas, the four-hour drive included a treacherous, 19-mile stretch through the Ozark mountains known as “Pig Trail.”

Although she attended classes with white students, a metal rail ran down the center of each of my aunt’s classrooms. White students sat on one side of the rail, my aunt and other Black students sat on the other. Many times, she was the only person on her side of the rail.

My Aunt Minnie graduated from the University of Arkansas with a master’s in education in 1956 and spent the next thirty years as an educator. She was one of the state’s first African American principals of an integrated school.

Her name is etched among the more than 150,000 names on the college’s Senior Walk, a zig-zag of sidewalks spanning more than five miles across its campus. One of the first things I did as a freshman at the University of Arkansas was to find her name on the sidewalk.

Like generations of African Americans, my aunt survived America’s worst. Despite an educational system rooted in racism, she excelled, even without affirmative action.

Minnie Muldrow Johnson still rose, regardless of circumstance. She overcame. Hopefully, we will, too.