We're Not Racist... Are We? The Case for Affirmative Action in Fisher v. U of Texas

"Watch your black ass, you little n*****!"

Captain Lee Abbott, my direct commander at Fort Stewart, GA, issued this inelegant warning to a boy crossing the street as we drove home through the small town of Hinesville in the summer of 1967. I was a young Army Lieutenant.

Captain Abbott came to regret this comment. Several weeks later I served as Defense Counsel in a Courts Martial of a black enlisted man who had gone Absent Without Leave (AWOL) from his German base. He claimed, and documented, an ugly history of racist behavior and racial slurs that drove him to abandon his unit. The panel of officers judging the case, including Captain Abbott, was barely attentive as I presented this racist experience as a matter of extenuation and mitigation, as allowed under the Uniform Code of Military Justice. My passionate defense elicited a yawn here and a smirk there. Irritated, I quoted Captain Abbott to provide inarguable evidence of racism. He was not happy. The accused soldier was found guilty - he was guilty - but no sentence was imposed. It was a small victory for justice.

This memory arose when I considered the arguments in so-called Fisher II, the affirmative action case scheduled to be argued before the United States Supreme Court on December 9th.

Fisher v. University of Texas at Austin is the highly publicized challenge of plaintiff Abigail Fisher, a white woman, who was denied admission to the University and claimed it was due to her race, thus a violation of the Equal Protection Clause of the Fourteenth Amendment. The University's race-conscious admission policy was upheld in District Court, appealed to the Supreme Court in 2012, remanded, affirmed once again by the Fifth Circuit in 2014, and appealed once again by Fisher et al. The case has become the most crucial battleground for race-conscious admissions in education. A great deal is at stake for those of us who work in schools and colleges.

Among the arguments for the plaintiff are claims that race-neutral, class-based policies are sufficient remedy for unequal educational opportunity. Fully conflating poverty with race requires suspension of belief, given the events since Fisher first filed her complaint in 2008. The notion that we are living in post-racial times is absurd. Since 2008, Michelle Alexander chronicled the New Jim Crow, exposing the shameful and racist realities of our criminal justice system. The corpses in a Charleston church were not race-neutral. Tamir Rice, Freddy Gray, Michael Brown, Eric Garner... I could go on... were poor indeed, but also black and dead. Angry white men in pickup trucks did not fly their Confederate flags and wave their weapons in the faces of a poor white family celebrating a birthday in Douglassville, GA in July.

This is not an abstract argument to me or other school leaders. Many of the girls and boys of color who attend my school are relatively poor, as are some of the white children. But only children of color report being followed in stores. Only children of color have been stopped and frisked by New York City's finest. Only children of color have been tardy to school because they could not hail a taxi when the subway was down. Only children of color endure white kids adopting their language and music without understanding the experiences that accompany the culture. Only a child of color watched as her father was asked to clean up a spill in our school by a white parent who assumed he was a member of our maintenance staff (a position of greater dignity than held by the white parent, I might add).

My school recently produced a documentary film titled, I'm Not Racist... Am I? Therein, students of color and white students engage in honest, raw, often endearing dialogue about the realities of race in America. The students of color bring uncommon wisdom and courage to the conversation. This powerful experience happened only because we and others have crafted diverse school communities where a critical mass of students of color are finally heard, not left to watch from the fringes of the school. It is deeply troubling to think that crafting such a community might be seen as denying any white students of their rights.

Affirmative action is a modest and gentle tool. Lifting a few heads above the water does not drown folks like Abigail Fisher. As has been well documented, she would have been denied by University of Texas at Austin regardless of her race. She and other white students have an ocean of opportunity.

The plaintiffs and their supporters would have you believe that racial discrimination and hatred are things of the past. They regard affirmative action as "reverse racism," as though such a thing can possibly exist. Racism requires power and privilege, attributes in short supply in communities of color. As events all over America in recent years make painfully clear, racism is very much alive. We have not made progress since 2008.

Other children crossed the street too as Captain Abbott and I made our way through Hinesville that day in 1967. They were all poor. Only one boy was black, as Captain Abbott crudely noted. Sadly, I'm not sure we've made much progress since that sunny afternoon in Georgia either.